' The above appeals are directed against judgment dated 10-11-1998 passed by Punjab Labour Court No,7, Gujranwala whereby the grievance petition filed by Abdul Majeed Mirza (petitioner) was allowed and he was reinstated in service. However his prayer for back-benefits was turned down.
2. Brief facts of the case leading to the aforesaid appeals are as under:-- ' Abdul Majeed Mirza was employed in Muslim Commercial Bank Limited as Manager in Alipur Chatha Branch at the relevant time. During his service he was found absent for more than ten days without leave. He also allegedly committed fraud on four counts. He was accordingly charge- sheeted which led to a regular enquiry. Mr. Abdul Waheed, Assistant Vice-President was initially appointed as Enquiry Officer but subsequently he was substituted by Mr. Imdad Hussain Butt, A.V.P.
At the request of the petitioner. The petitioner joined the enquiry proceedings. The Enquiry Officer found him guilty of the above charges and submitted his detailed report Exh. P-10. On the basis of the same the petitioner was dismissed from service vide order dated 2-3-1983.
3. Feeling aggrieved Abdul Majeed Mirza sought the indulgence of the Labour Court by moving a grievance petition which was contested by the respondents. Both the parties led evidence (oral and documentary) in support of. Their respective claims. The learned Labour Court after a detailed analysis of the entire evidence gave verdict in favor of the petitioner and allowed his grievance petition vide the impugned judgment. However, his request for back-benefits was turned down.
4. The respondents have challenged the propriety and legality of the impugned judgment vide the instant Appeal No,GA-403/98-Punjab) while Abdul Majeed Mirza has assailed the above judgment of the Labour Court by filing a separate Appeal (No, GA-411/98) and I propose to dispose of both the appeals by this single judgment because common question of law and facts is involved in both of them and both are directed against the same judgment.
5. While accepting the grievance petition filed by the petitioner, the learned Labour Court has chiefly propounded two main arguments, first, that since the petitioner/respondent (Abdul Majeed Mirza) who was also prosecuted for committing fraud and misappropriation of bank money was acquitted by a Court of competent jurisdiction hence criminal charge against him having stood not proved, the allegation of fraud and misappropriation was absolutely groundless hence he would not have been penalized for the aforesaid offences; and secondly; that the letter of dismissal of the petitioner/respondent was not issued by the competent authority.
6. Controverting the aforesaid grounds, the learned counsel for the appellants vehemently contends that acquittal of the petitioner/respondent from the criminal charge was hardly sufficient to exonerate him from the charge of misconduct particularly when he was found guilty during the domestic enquiry conducted by a Senior Bank Officer and the acquittal cannot overweigh the result of the enquiry which has an independent sanction in law. Even otherwise, the learned trial Court has failed to consider the second charge relating to wilful absence from duty. The petitioner/respondent has frankly conceded in his reply to the charge sheet Exh. P-4 and in his statement when he appeared as P.W.-1 that he was absent from duty at the relevant dates. But unfortunately, the learned trial Court did not touch this point and based his verdict on the simple ground that the petitioner/respondent was acquitted from the criminal Court.
7. Coming to the second ground which has weighed with the Labour Court regarding non-issuance of dismissal order by competent authority, the learned counsel for the appellant contends that the same was issued by the Zonal Chief with the approval of the authority and this is so stated in the letter Exh.P-12 hence no illegality was committed either by the issuing authority or by the competent authority. The learned lower Court has, therefore, erred in holding that the dismissal of the petitioner/respondent was coram non judice. Under Standing Order 15(4) of the Standing Orders Ordinance, 1968, the only requirement is the approval of the employer/authority which has been satisfactorily made in this case, the learned counsel further added.
8. The learned counsel for the appellant (MCB) has further agitated that the grievance petition was patently time-barred. The dismissal order was issued on 2-3-1983. The grievance notice was served on 24-11-1994 hich followed the grievance petition which was filed after about 11 years of the dismissal of the petitioner and there was no justification whatsoever for the condonation of such an inordinate delay. The learned trial Court while condoning the delay has observed that since the criminal prosecution continued for 10/11 years and the petitioner/respondent had to face a protracted litigation hence he could not file his grievance petition with the statutory period. He was quite helpless and handicapped for this reason, Meeting this argument, the learned counsel relying on a D.L. Judgment reported in 1995 PLC 50 has alleged that the continuation of criminal proceedings for a pretty long time cannot be taken to be a valid ground for condonation of delay in filing the grievance petition. Reliance is place on 1994 PLC 507, 2001 SCMR 2018 and 2001 PLC 149.
9. Lastly it has been argued by the learned counsel for the appellant-Bank that the petitioner/respondent was a manager of the branch. He was holding a controlling/executive authority. He was not a worker or workman within the definition of Labour Laws hence he was not competent to seek the indulgence of the Labour Court: Reliance is placed on 1985 SCMR 1511, 1994 PLC 46 and 1999 PLC 38.
10. Having given my careful consideration to the above contentions I have not been able to pursuade myself to agree with the learned counsel for the respondent that he had no intimation of his dismissal from March, 1983 till February.
1995. There is nothing on the file which may tend to show that the petitioner/respondent (Abdul Majeed Mirza) was detained in jail during this period and all his links with outside world were broken. He remained behind the bars for a couple of months. It is indeed true that he was acquitted in the criminal case in 1994 but he had been prosecuting his case as a free citizen, hence it is highly inconceivable that he had no intimation of his dismissal from service. Even otherwise his oral assertion in this regard cannot be taken as a gospel truth. If the Courts start believing oral assertions of the dismissed employees that they had no intimation of their dismissal then such dismissed employees after serving 10/12 years in foreign land would file grievance petitions before Labour Courts seeking their reinstatement in service with back-benefits and shall meet the question of delay and limitation by taking the above plea that they had no knowledge or information of their dismissal and -shall be able to make a mockery of justice. Such a delinquent employee who has approached the Labour Court after about 12 years of his dismissal with a lame excuse that he had no intimation of his dismissal did not deserve any leniency whatsoever and his grievance petition should have been outrightly dismissed on this score alone but to my great surprise the learned Labour Court has condoned this inordinate delay of 12 years without assigning any cogent and convincing ground. No conscientious Judge would condone this inordinate delay for which no reasonable .Explanation is forthcoming. The learned counsel for tire respondent (Abdul Majeed Mirza) has vehemently contended that no order of dismissal was .Passed by the competent authority and for this reason no written order was produced before Labour Court during the trial of this case. This argument has no substance. The appellant-Bank produced an order of dismissal of the petitioner/respondent Exh. P-12 which is placed on the file. This order was issued by the Zonal Chief on 2-3-1983 and was sent to the petitioner/respondent at his home address supplied to the employer by the respondent himself. It is, therefore, highly inconceivable that the petitioner/respondent had no intimation of his dismissal from March, 1983 till February, 1995. This is a monstrous lie which cannot be accepted by any sane or sensible person. I am, therefore, convinced that the petitionet/respondent (Abdul Majeed Mirza) was fully alive of his dismissal in March, 1983 but in view of his involvement in two criminal cases he kept mum for 12 years and after acquittal from, the said cases he sought the indulgence of Labour Court by pleading his ignorance about his dismissal from service. His assertion in this regard is absolutely false and fabricated. This conclusion of mine stands further fortified by the admission of the petitioner/respondent which appears in his cross-examination at page 4 and I quote the relevant portions.
"I sought confirmation from the management. The reply is Exh. P-9, alongwith the latter, inquiry report was also given, which is Exh.-P-10. I submitted reply Exh. P-11 on 24-2-1983. Soon after I was dismissed from service."
' A bare reading of the above admission clearly shows that information with regard to the dismissal from service was received by the petitioner/respondent soon after submitting reply dated 24-2- 1983, as noted above. Therefore, it cannot lie in the mouth of the petitioner that the order of dismissal was net received by him in time.
11. It has been vehemently contended on_ behalf of the petitioner/respondent (Abdul Majeed Mirza) that since the dismissal order itself was illegal and void ab initio, no limitation can be imposed on it. The contention is self-contradictory. On the one hand the petitioner says that no limitation is prescribed to assail an illegal order. On the other hand he himself has requested by submitting an application for the condonation of delay. If the order of dismissal of the petitioner/respondent as he claims was void and illegal, there was no need to annex an application for the condonation of delay along with the grievance petition and to offer various justifications and lot of reasons in support of condonation of delay.
12. Even otherwise an employee is not the best Judge to judge the validity and propriety of an order passed by the employer. If the employee is convinced that the order of his dismissal is illegal, he should get. It set aside by the conipetent forum but so long as that order, even void remains intact and is not set aside by a Court of competent jurisdiction, that order is binding on all concerned. A worker or workman, if aggrieved of an illegal order, should immediately seek indulgence of the proper forum in order to avert consequential harm. However the aggrieved party sought to approach the Labour Court within the statutory period and no time-barred claims/appeal is competent even against a void order. It was, therefore, obligatory for the petitioner/respondent to approach the Labour Court by filing a grievance petition within the statutory period but he sought the indulgence of the Labour Court after about 12 years of his dismissal. This inordinate delay was not condonable. It is also significant to note that in the application for condonation of delay submitted by the petitioner/respondent he has not alleged that the order of dismissal was void and illegal, therefore, no limitation can be imposed upon it. Grievance petition being patently time- barred was liable to be dismissed on this score alone. There was no ostensible reason to condone this delay of about 12 years, hence the finding of the Court below on this pivotal issue is patently erroneous and misconceived. In this regard I cannot help borrowing a very wise observation of the Hon'be Apex Court given in Muhammad Raz Khan v. Government of N.-W.F.P. And another (1997 PLC C.S.) 600 (603) and I quote the relevant portion:-- "There is no cavil to the proposition that normally constraints of limitation do not apply against void orders as held in case of Muhammad Sharif v. Mushtaque Ahmed (1996 SCMR 865). Nevertheless every case is distinguishable on its facts and circumstances. It is undoubtedly imperative for aggrieved party to peruse legal remedies with utmost diligence and satisfy conscience of the Court or quasi-judicial authority for approaching respective forums beyond prescribed limitation, even if objections to the effect were not raised. This principle has been discussed in PLD 1985 SC 153 (Hakim Muhammad Buta and another v. Habib Ahmad and others and PLD 1993 SC 147 (Supreme Court, Province of Punjab and others v. Muhammad Hussain and others). Thus, aggrieved person seeking redress has legal obligation to justify 'each day's delay' for launching proceedings, because with lapse of time valuable right accrues to the opposite side. This view has been consistently maintained by superior Courts. However, reference may be made to judgments reported in (i) PLD 1996 SC 292 (Ali Muhammad and others v. Muhammad Shafi and others), (ii) PLD 1995 SC 396 (Government of Punjab v. Muhammad Saleem), (iii) 1986 SCMR 930 (Muhammad Feroze Khan v. Khalique Dad Khan and 28 others), (iv) PLD 1982 SC (AJ&K) 13 (Khadim Hussain Khan v. The State).
' Now looking to applicability of limitation against void orders question would naturally arise whether right of such person against whom an adverse order exists would be unfettered, ignoring established principles and would enjoy limitless discretion to knock the door of justice whenever desired by him or same should be regulated by judicious norms. We earnestly feel that unless certain constraints apply against right of challenging void order specially relatable to period of knowledge, the same may create complications leading to dangerous results. Principle of justice and fairplay does not help those who were extraordinary negligent in asserting their right and despite becoming aware about alleged void order adverse to their interest remain in deep slumber Therefore, according to our considered opinion facility regarding extension of time for challenging orders cannot be legitimately stretched to any length of unreasonable period at the whims, choice or sweet-will of affected party. Thus, order termed as nullity or void could at best be assailed by computing period of limitation when he factually came to know about the same. When a person presumes that adverse order is a nullity or totally devoid of lawful authority and ignored it beyond the period specified by law of limitation, then he does so at his own risk. Therefore, in all fairness terminus quo will have to be fixed, the date of knowledge of alleged void orders; which too must be independently established on sound basis. In this behalf, we derive strength from the observations contained in PLD 1975 Baghdad ul Jadid 29 (Sayed Sajid Ali v. Sayed Wajid Ali), and 1978 SCMR 367 (S. Sharif Ahmad Hashmi v. Chairman, Screening Committee).
13. Coming to the next point which calls for the determination of this Tribunal is whether the petitioner/respondent (Abdul Majeed Mirza) was a worker/workman with the definition of Labour Laws. The respondent was employed as Branch Manager at Alipur Chatha. This fact is admitted by the respondent in his cross-examination. It is indeed true that in certain cases Branch Managers serving in different banks were held not to be workers/workmen within the definition of I.R.O. And Standing Orders Ordinance, 1968 and this was so held in 1985 SCMR 1511, 1985 PLC 403, 1994 PLC 46 and 1999 PLC 38. However this is not an inflexsible rule. Each case has to be decided in the light of its own peculiar circumstances. It is now well-settled that it is not the designation but the nature of duties performed by the person, will determine his status as worker/workman and this is so held in PLD 1988 SC 633. The petitioner/respondent who appeared as P.W.-1 deposed on oath that as Officer Grade II he was performing the duties which were essentially of clerical and manual nature.
Various duties assigned to the petitioner/ respondent by the appellant-Bank fully detailed in his statement, which were not seriously doubted or disputed during his cross-examination, leave no room for doubt that despite his high sounding status of Grade II Officer he was doing duties which were chiefly of clerical nature. The petitioner/respondents P.W.-1 was subjected to a searching cross-examination, but there is nothing on the file which may tend to discredit his testimony on the question of status. No specific question was made to P.W.-1 that he was not performing the duties of clerical arid manual nature or that whatever he deposed was totally false and incorrect. Now on the basis of evidence available on the file I can safely conclude that the petitioner/respondent was a workman as defined under the provision of West Pakistan Industrial and Commereial Employment Standing Orders Ordinance, 1968. Reliance may be placed on PLD 1975 Karachi 312.
This judgment was upheld by the Supreme Court of Pakistan in a case reported as 1975 SCMR 505.
The finding of the Court below on this major issue represents the true appraisal of the case and calls for no interference.
14. Coming to the next point which falls for the determination of this Tribunal is whether the departmental appeal allegedly filed by the petitioner/respondent may be considered as a grievance notice. Suffice it to say that it is now well-settled that appeal is not a grievance notice.
This matter came up for decision before this Tribunal in a case titled ' ABL v. Nasir Abbas Naqvi'
Appeal No,RI-4/2001 dated 20-2-2002. The relevant Para of the judgment is reproduced as under:-- "Service of grievance notice by the employee upon the employer before filing grievance petition is a sine qua non and its non-service is fatal for the grievance petition as held in various celeberated judgments of the superior Courts including this Tribunal and I quote 1999 PLC 466. In this case this Tribunal termed the grievance notice as vital and condition precedent for filing of grievance petition under section 25-A of the Industrial Relations Ordinance, 1969 and the grievance petition was dismissed simply on the ground that there was no proof of service of grievance notice. Even otherwise it is a well-settled law that departmental appeal to the authority cannot be treated as grievance notice. Reference may be made to judgments reported in 1983 PLC 389, 1983 PLC 616 and 1982 PLC 920".
' I am, therefore, of the view that the finding of the Court below on this issue is also erroneous and incorrect. But assuming without conceding that the departmental appeal may be treated as grievance notice even then the departmental appeal filed after a lapse of statutory period of three months from the date of dimissal from service was patently time-barred, hence the grievance petition was not maintainable for this legal infirmity.
17. Another aspect of the matter which deserves special attention is whether each Branch of MCB in which the petitioner/respondent was employed was a separate establishment. The respondent was employed as Manager at Alipur Chatha Branch of appellant-Bank. He has frankly admitted in his cross-examination as under:-- {{URDU TEXT}} ' It is a settled law that each Branch of the bank is a separate establishment. Reliance is placed on 1982 PLC 20 and 1980 PLC 800. It is for the employee to prove that 20 or more workmen were employed in the branch where he was serving at the relevant time. It is a mandatory requirement of law for invoking the Standing Orders Ordinance, 1968 and I cannot help borrowing a very wise observation of Mushtaq Ali Qazi, Chairman Labour Appellate Tribunal Sind given in Messrs Allied Bank of Pakistan Ltd. v. Aleem Haider and another (1997 PLC 219) and I quote the relevant portion:-- "Mr. Iftikhar Hague has remained absent. Similar case of Allied Bank v. Syed Ali Shah being Appeal No, Kar-83 of 1996 was decided on 1-4-1996 on the basis of the decision of the Supreme Court that the company may have more than one establishments or units and each unit should have 20 or more workers to attract the application of the Standing Orders or the I.R.O., In this case the Allied Bank has several branches in the country and all such branches cannot be considered to be one unit. Each branch is to be taken separately for the purpose of the application of Standing Orders.
The burden lies on the worker to show that the unit employs 20 or more workers and the I.R.O. And the Standing Orders Ordinance have therefore application in his case. Since this has not been proved and objection has been raised that the unit of the Bank is governed by the Shops Act the grievance petition under section 25-A, I.R.O., was not maintainable before the Labour Court".
' I am therefore, of the view that the provision of West Pakistan Industrial and Commercial Employment Standing Orders Ordinance, 1968 was not applicable in this case, hence the grievance petition was not maintainable.
18. Coming to the next objection raised by the learned counsel for the petitioner/respondent that neither the show-cause notice nor dismissal order was issued by the competent authority, the learned Court, below has observed in the impugned judgment that the charge-sheet, letter of inquiry and the order of dismissal had been ordered by person not competent to do so. I propose to examine this point in detail and reproduce the provisions of subsection 4 of the Standing Order 15 of the West Pakistan Industrial and Commercial Deployment Standing Orders Ordinance, 1968 as under:-- "(3) No order of dismissal shall be made unless the workman concerned is informed in writing of the alleged misconduct within one month of the date of such misconduct or of the date on which the alleged misconduct comes to the notice of the employer and is given an opportunity to explain the circumstances alleged against him. The approval of the employer shall be required in every case of dismissal and the employer shall institute independent inquiries before dealing with charges against a workman: ' Provided that the workman proceeded against may, if he so desires for his assistance in the inquiry, nominate any workman employed in that establishment and the employer shall allow the workman so nominated to be present in the inquiry to assist the workman proceeded against and shall not deduct his wages if the inquiry is held during his duty hours".
' The latest judicial pronouncement on this point is that of the Honourable Supreme Court reported in 1995 SCMR 1758. The worthy apex Court observed as under:-- "Clause (4) indicates that no order of dismissal against a workman shall be made unless the workman is informed in writing of the alleged misconduct and is given an opportunity to explain the circumstances alleged against him. The said clause further indicates that approval of the employer shall be required in every case of dismissal. It also indicates that the employer shall institute independent inquiry before dealing with any charges against a workman. The defmition of the term "employer" indicates that the person referred to as employer in the said defmition may either be the owner of the establishment itself or in case of a factory, any person named under clause (c) of subsection (1) of section 9 of the Factories Act, 1934 as the Manager of the factory. The defmition of the word "employer" is a comprehensive definition and it also extends to establishment other than a factory but since in the present case the establishment concerned was a factory, reference to other clauses in the said definition is not necessary. In the present case, there appears to be no controversy in regard to the fact that the Directors of the said establishment had executed a power of attorney in favor of the Manager, Personnel and Administration authorizing him to pass an order of dismissal of officer to conduct an inquiry against him in case of a misconduct. Such authority to the Manager Personnel and Administration was therefore given by the owner of the factory itself which was the Board of Directors in the present case. Learned counsel for the petitioner has nevertheless argued that as would be necessary before any such action is taken against a workman indicates that such approval was not given by the Board of Directors in regard to the action taken against the petitioner. The presumption on the contrary would be that the petitioner had been removed from service with the approval of such Board of Directors. Nothing can be spelt out from the language employed by the Legislature in clause (4) of the Standing Order 15 to indicate that such approval must be in writing.
It is also pertinent to point out that clause (4) does not indicate that the Inquiry Officer who conducts an inquiry against such workman must be appointed under the order of the employer himself. Even the order of dismissal of the workman is not required to be passed by the employer himself. All that is required by the said clause is approval of the employer himself before dismissal of a workman and as we have pointed out earlier, the petitioner has failed to establish before us that such approval was not granted by the employer in the present case".
' It emerges from this that it is not a requirement of Standing Order Ordinance that the charge- sheet or inquiry be ordered by the competent authority. Although in the instant case the charge- sheet and inquiry were ordered by the competent authority. As far as letter of dismissal is concerned, it states that approval of the employer is to be obtained and in the aforesaid judgment of the Supreme Court, the learned Court has observed that it will be for the worker to establish that such approval was not granted. On a careful perusal of the letter of dismissal Exh. 12 where it is specifically stated at page 3 that. "It has been decided by the Head Office". These words signify that the dismissal of the petitioner/ respondent was approved by the employer. I am, therefore, constrained to hold that the action against the petitioner was taken and he was dismissed from service with the approval and under the order of competent authority. The objection raised by the learned counsel for the respondent is devoid of force which is accordingly overruled.
19. Coming to the last objection raised by the learned counsel for the appellant-Bank that the charge of wilful absence was not touched by the learned Labour Court, I do not see an substance in it. There is no doubt or dispute that the allegation of wilful absence for more than ten days was levelled against the respondent (Abdul Majeed Mirza) in the charge-sheet. But during the domestic inquiry it was not mentioned by the prosecution at all, what to speak of establishing the same.
Similarly the appellant-Bank has failed to point out such allegation before Labour Court as such there was no need for the learned Labour Court to give finding on the said allegation and the appellant cannot be allowed to take advantage of this emission at this belated stage.
20. The upshot of the above discussion, therefore, is that the grievance notice and the grievance petition being patently time-barred were liable to be dismissed on this score alone. I, therefore allow this appeal filed by Muslim Commercial Bank Limited (Appeal No,GA-403/98), set aside the impugned judgment and dismiss the grievance petition filed by the petitioner/respondent (Abdul Majeed Mirza). Parties are however left to bear their own costs.
21. As regards the counter-appeal filed by Abdul Majeed Mirza Appeal No,GA-411/98 for the grant of bank benefits suffice it to say that since the appeal filed by the bank ha: been allowed and the grievance petition filed by Abdul Majeed Mirza has been dismissed, his appeal for the grant of back-benefits can't succeed. The same is accordingly dismissed for the reason elicited above.
Order accordingly.
[National Industrial Relations Commission] Before Qazi Ahmed Saeed, Member DILBER KHAN versus GHAZI BAROTHA CONTRACTORS through Administration and Finance Manager, Tarbela Case No,4A(25) of 2000, decided on 6th July, 2002.
(a) Industrial Relations Ordinance (XXIII, of 1969)--- ----Ss.15 & 22-A(8)(g)---Allegation of unfair labour practice by employer---Petitioner had alleged that his termination from service was result of victimization on account of his trade union activities whrch had constituted unfair labour practice on part of the employer---Petitioner who was terminated according to terms of his appointment letter which Were binding on him had himself admitted during his cross-examination that he was not a office-bearer of the Union and had not made any specific allegation of unfair labouf practice against the employer---Petitioner had failed to establish a single trade union activity which would annoy employer to such an extent that it would go out of way to victimize petitioner---National Industrial Relations Commission would acquire jurisdiction only if it was shown that unfair labour practice had been committed--- Provision of S.15 of Industrial Relations Ordinance, 1969 had provided redress of grievance as arising out of victimization on account of trade union activities and no other victimization even if proved was actionable by National Industrial Relations Commission in exercise of jurisdiction under S.22- A(8)(g) of Industrial Relations Ordinance, 1969---Mere bald allegations of unfair labour practice were not sufficient to prove victimization to justify interference by National Industrial Relations Commission---Petitioner who was neither office-bearer of Union nor had made Any specific allegation of unfair labour practice against employer, could not be granted relief prayed for nor the Natronal Industrial Relations Commission would have jurisdiction to deal with his case. [pp. 199, 203, 204, 2061 A, B, C & D 1994 PLC 306; Muhammad Yaqoob v. The Punjab Labour Court No,1 and 5 others 1990 SCMR 1539; Board of Governors Aitchison College Lahore v. Punjab Labour Appellate Tribunal and others 2001 PLC 589; Ahmad Sadiq v. Chief Settlement Commissioner PLD 1974 SC 368; University of Delhi and another v. Ram Nath and others AIR 1963 SC 1873; 1992 PLC 665; K.D. Old Principal Christian Technical Training Centre Gujranwala v. Punjab Labour Court, Northern Zone and 6 others PLD 1976 Lah. 1097; S.M. Gill v. M/s. Tarbela Joint Venture 1977 PLC 133; 1992 PLC 1090; PLD 1988 SC 53; 1991 PLC 876; 1988 PLC 419;1994 PLC 31; Nazar Muhammad General Meager T.I.P. Haripur and another v.
Ghulam Asghar and 4 others 1988 PLC 923 and National Motors Limited v. Muhammad Hanif 1987 PLC 547 ref.
(b) Industrial Relations Ordinance (XXIII of 1969)--- ----Ss.2(xiv), 9(xxviii) & 22-A(8)(g)---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(b)(i)---Educational Institution not an industry---Any institution where education was imparted would not be covered by labour laws---- Petitioner who was employed as Physical Training Instructor in a School would not fall within definition of 'worker' as defined under S.2(xxviii) of Industrial Relations Ordinance,1969, or under S.2(i) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.
[p. 206] E Board of Governors Aitchisan College Lahore v. Punjab Labour Appellate Tribunal and others 2001 PLC 589 ref. Mushtaq Hussain Bhatti for Petitioner.
Nuh Nabi Butt Senior Legal Officer alongwith F.K. Butt for Respondent.
' This petition under section 22-A(B)(g) of I.R.O., 1969 was filed by Dilber Khan son of Abdul Qadir against M/s. Ghazi Barotha Contractors Tarbela through its Administration and Finance Manager on 25-2-2000 with the following prayer:-- "that this Commission may take necessary steps so that the right of the petitioner to remain in the employment of the respondent is duly protected and safeguarded and he is restored to his job which has been denied to him for his participation in the legitimate trade union activities".
2. The petitioner by way of this petition has alleged:-
(I) that the petitioner is an Ex-Serviceman of the Pakistan Army and possesses specialized experience of Physical Training. It is further submitted that the petitioner was employed as Physical Training Instructor in the G.B.C. International School Tarbela with effect from 1-10-1997, initially on probation for a period of six months, which period the petitioner had satisfactorily completed.
(II) that the respondent being the Administration and Finance Manager controls administrative affairs and fiscal matters of the G.B.C. International School, Tarbela, which is owned and run by the Ghazi Barotha Coniractors and an integral part of the work place of the said Contractors and as such covered by the West Pakistan Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968. It is further submitted that the petitioner is a workman by reason of the nature of work as envisaged in section 2(1) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 read with clause (XXVIII) of section 2 of I.R.O., 1969.
(III) that the petitioner is a strong supporter of the. Awami Labour Union Ghazi Barotha Contractors and as a front man of the said union in the aforesaid School, the petitioner has mobilized his resources to muster support of the School employees (about 30 in number) so that they join the union as members with the sole object of protecting their rights and interests as enshrined in the Labour Laws applicable to the G.B.C. (A certificate issued by the General Secretary of the union that the petitioner has been victimized by the management on account of his trade union activities is at Annexure-B of the petition).
(IV) that while the petitioner was contemplating to take overt acts, the plan conceived by him for the benefit of the School employees had leaked out and percolated to the management of the respondent, who became hostile and inimical to the petitioner. The respondent had expressed his deep concern to the petitioner on several occasions and had advised to abstain from accomplishing his move designed to identify the manpower structure in the School with the Awami Labour Union. It is next alleged that as a first step to injure the petitioner's employment, a warning letter was issued on 2-11-1999 in respect of the so-called act of misconduct allegedly committed by the petitioner on 14-9-1999 while the warning letter does not spell out any details of the alleged misconduct and also it suffers from reasonable proximity in point of time between the Commission of alleged act of misconduct and they warning letter issued. It is further contended that on 14-9- 1999 the petitioner was on leave, duly sanctioned by the principal of the School 'as mentioned in the Pay-Slip for the month of September, 1999, It is next alleged that in furtherance of the disposition of the management towards the petitioner which had undergone abrupt change and culminated into animosity for his practical support for the Awami Labour. Union, the services of the petitioner were suddently terminated on 29-1-2000. The letter of termination says that the services of the petitioner are no longer required, but without assigning any reason which omission is not recognized, by Order 12(1) and (3) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. It if further contended that the post held by the petitioner does not permit redundancy so long as the school functions while on the other hand the respondent has initiated action for recruitment of another Physical Training Instructor.
(v) that the respondent had made up his mind and determined to get rid of the petitioner by hook or crook and the manner adopted by the respondent prove that services of the petitioner were terminated in violation of the law and in a hot haste which tantamounts to Unfair Labour Practice within the meaning of section 15(1)(d)(II) of I.R.O, 1969 and demands that this Commission may deal with the matter as envisaged in section 22-A(8)(g) of I.R.O., 1969.
3. This petition was placed before the then learned Member Mr. Muhammad Akbar on 26-2-2000 and notice of the petition was issued to the respondent. The respondent while filing his written statement has resisted and vehemently opposed the petition by raising inter alia certain legal objections regarding maintainability of the petition. On merits the respondents also controverted the allegations made by the petitioner.
4. In his written statement, the respondent has emphatically denied the allegation and contended that the petitioner has no locus standi and no cause of action to file the instant petition. It is further contended that no case of unfair labour practice has been made out by the petitioner, hence the petitioner is liable to the dismissed in limine. In para 4 of his written statement, the respondent has contended that the petitioner is not covered by the definition of workman as laid down under the West Pakistan Industrial and Commercial Employment (Standing Order) Ordinance, 1968 and I.R.O., 1969. In para 6, it is further contended, that being a teaching staff of the School, the petitioner cannot invoke jurisdiction of this Commission under the I.R.O., 1969. It is next contended that the impugned termination order has no relevance and nexus with the story fabricated by the petitioner and the allegations are baseless and misleading. The respondent has emphatically denied that the impugned termination order has been passed on account of trade union activities of the petitioner. The respondent has prayed that the petition being devoid of any merits and based on misleading averments be dismissed with cost.
5. Both the parties adduced their evidence through affidavits in evidence. Petitioner has filed affidavit in evidence in support of his contention. He was cross-examined by the learned counsel for the respondents. Similarly on behalf of the respondent, Mr. Nuh Nabi Butt Senior Legal Officer of Gazi Barotha Contractors has filed his affidavit in evidence. He was cross-examined by the learned counsel for the petitioner.
6. In his affidavit in evidence, Mr. Nur Babi Butt has asserted that the petitioner was employed as Physical Traning Instructor in G.B.C. International School Tarbela and his services were terminated w,e,f, 30-1-2000 in accordance with clause 4 of his appointment letter. It was further stated that the petitioner was the only Physical Training Instructor in the School, hence there was no question of Seniority/Junrority involved in his termination. It was further stated that the petitioner was never remained office-bearer of the union and therefore he has no locus standi and cause of action of. File this petition. It was further asserted that the project of Ghazi Barotha Hydro Power Project being executed by the Respondent-Company for the Federal Government is of limited duration and the remaining work shall be completed within the next 6 to 12 months and by the time the project is completed, all the employees currently on the Pay roll of the Respondent- Company shall be gradually terminated. It is next asserted that G..B.C. International School, Tarbela which was an independent section of the respondent project has now been completely closed and all the staff employed in the said school have since been terminated.
7. Arguments were heard. I have gone through the pleading of the parties and their respective versions and also examined record of the case minutely. Though in para-12 of his affidavit in evidence, the petitioner has alleged that the impugned termination order was the result of victimization on account of his trade union activities, which constitute Unfair Labour Practice on the part of the respondent, but during his cross-examination he stated in the following words:- ".It is correct that terms of my appointment letter as contained in Exh. P.W./I were binding on me as well as on G.B.0 "
" It is correct that I was part of the G.P.C. International School Staff..
"I was supporter of the union, but I was not office-bearer of the union."
" ..It is correct that I have not made any specific allegation of unfair labour practice against the respondent.."
"..It is correct that the respondent-Company has closed G.B.C. International School Tarbela on 22- 3-2002 where I was employed.......".
"..Under the law no union can be formed in a School, Voluntarily states that the G.P.C. International School was attached with the project of G.B.C. And was an integral part of the Project..
8. Since claim of the petitioner that he was victimized on account of his trade union activities is contrary to the admission made by him during his cross-examination that he is not office-bearer of the union and has not made any specific allegation of unfair labour practice against the management, therefore this Commission has no jurisdiction to deal with the instant case. The gist of the arguments of the learned counsel for the respondent is that the law does not confer a general jurisdiction upon the Commission except where the employer commits or is likely to commit an act of unfair labour practice as defined under section 15 of I.R.O, 1969. He further contended that though malice or mala fides actions constitute a strong ingredient of Unfair labour practice, but only malice does not constitute unfair labour practice. He also repelled contention of the petitioner that his termination was motivated due to his trade union activities and contended that the impugned termination order has been passed in term of clause-4 of his appointment letter (Exh. P.W.1) and it has nothing to do with the so called trade union activities of the petitioner and therefore this Commission has no jurisdiction. In this connection he placed reliance on a Judgment reported in 1994 PLC 306 wherein it was held that jurisdiction of this Commission being restricted and limited to cases based on allegation of unfair labour practice.
9. Arguments were also heard on the objections raised by the respondents regarding maintainability of the petition and jurisdiction of this Commission. Learned counsel for the respondents has submitted that this Commission has no jurisdiction to deal with the case of the petitioner as he was employed as Physical Training Instructor in the G.B.C. International School Trabela Purely on temporary basis as laid down under clauses 15 & 19 of the appointment letter (Exh. P.W/I) which reads as follows:-- "You may be retrenched on account of reduction of work, reorganization or as a measure of economy. Retrenchment will be categorywise/section-wise and not on the basis of the whole company. Your section has been determined in this letter of appointment, but can be modified according to the company requirements".
"You are hereby made aware that your employment in the Company in connection with the work undertaken is not of a permanent nature".
10. He further submitted that the project of Ghazi Barotha Hydro Power Project is of limited duration and its work is not of permanent nature, therefore all its employees are temporary worker and accordingly cannot claim protection of Standing Order Ordinance, 1968 and I.R.O., 1969. In this connection he sought reliance upon the judgment of Honourable Supreme Court in the case of Muhammad Yactoob versus The Punjab labour Court No,1 & 5 others (1990 SCMR 1539) in which it was held that:- "In order to get the benefit of the Standing Orders Ordinance in the matter of termination of service, the Petitioner had to show that he was permanent workman. A permanent workman has been defined in the Standing Orders Ordinance by reference to the nature of the work on which he has been engaged or employed. If the work is not of a permanent nature, then howsoever long may be his employment, he cannot be taken to be a permanent workman".
11. He further contended that being an educational institution G.B.C. International School Tarbela is not an industrial concern and therefore provisions of Standing Orders (Ordinance) 1968 and I.R.O, 1969 are not applicable to it. In this connection he placed reliance upon the judgment of Honourable Supreme Court of Pakistan in the case of Board of Governers Aitchison College Lahore versus Punjab Labour Appellate Tribunal and others (2001 PLC 589) wherein it was held that:- "A careful study of the provisions referred to hereinbefore persuades us to hold that to invoke the jurisdiction of Presiding Officer under section 25-A, I.R.O., it is essential for an employee the provisions of the Ordinance or the I.R.O. And his grievance relates to an industrial dispute meaning thereby that an industrial dispute can arise only when such aggrieved person is connected with an industry or industrial establishment therefore both expressions industry or industrial establishment require interpretation in their origin and true sense to ascertain as to whether institution imparting education falls within the definition of industry or industrial establishment. This Court in the case of Ahmad Sadiq v. Chief Settlement Commissioner (PLD 1974 SC 368) has interpreted the word "industry" as follows:-- "The basic concept of industry or its derivative industrial undertaking is that there must be joint economic endeavour of the employer and the employee, to produce wealth or reader services. In other words, what comes out of an industry' must be the result of combined effort of both the capital and the workmen and must be distinguished from what is commonly known as business or trade. In the case of industry, the relationship of employer and employee is not that of a mere master and servant".
"Taking into consideration the above definition of word "industry" without any fear of doubt it can safely be held that the institutions responsible for imparting education like the appellant's organization does not fall within the definition of industry. At this stage reference advantageously can also be made to the University, of Delhi and another v. Ram Nath and others." (AIR 1963 SC 1873).
"With reference to the facts of the case of K.G. Old (Supra), it may be noted that said institution was engaged in offering technical education in the field of woodwork, sheetmental welding, electrician etc., and it had its own workshop but despite of that it was held that it is an educational institution and training establishment and if it is maintaining an industrial unit (workshop) rendering services on payment, adverting its products, it is an incidence of vocational education and of training programme designed to ensure job opportunities to the trainees. Therefore, what is incidental to the main purpose cannot detract in any manner, from its being an educational institution. Applying this test on the facts in hand we fell no difficulty in concluding that appellant's organization is neither an industry nor if falls within the definition of industrial establishment, therefore, its employees cannot be considered to be worker or workman either under I.R.O. Or Ordinance."
' Learned Counsel for the respondent has further contended that the aforesaid School has been completely closed since 22-3-2002.
12. On the other hand learned Counsel for the petitioner has contended that the petitioner was a permanent workman employed by the respondent against a permanent post and his services were terminated by letter dated 29-1-2000 without showing any reason in violation of Orders 12(1) & 3 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance 1968, only on account of his trade union activities which tentamounts to unfair labour practice within the meaning of section 15(1)(d)(ii) of I.R.O., 1969 and therefore this Commission has the jurisdiction to entertain this petition. In this behalf he placed reliance upon the judgment reported in 1992 PLC
665. He also repelled the contention of the respondents that being an educational institution, the G.B.C. Internional School is not an industrial concern and therefore provision of Standing Orders Ordinance 1968 and I.R.O. 1969 are not applicable to it and contended that G.B.C. International School is part of the Project therefore all labour laws are applicable to the employees of the said school. Learned counsel in this behalf has referred to the case of K.D. Old Principal Christian Technical Training Centre Gujranwala v. Punjab Labour Court, Northern Zone and 6 others (PLD 1976 Lahore 1097), the case of Mrs. S.M. Gill v. M/s. Tarbela Joint Venture (1977 PLC 133) and the case reported in 1992 PLC 1090.
13. I have given my anxious consideration to the submissions made by the learned counsel for the petitioner and the respondent regarding allegations of unfair labour practice. I could not bring myself to agree with the petitioner that his case is based on allegations of unfair labour practice.
Although in para 6 of his affidavit in evidence the petitioner claims that he was a strong supporter of the Awami Labour Union Ghazi Barotha Contractors and being the frontman of the said union in the aforesaid School he had mobilized the School employees to become member of the said union, but the certificate issued by the General Secretary of the aforesaid union (at Annex-B of the petition) is silent even about his own membership of the union. He miserably failed to establish a single trade union activity which would annoy the respondent to such an extent that they would go out of their way to victimize the petitioner. Particularly when the petitioner was neither member nor officer-bearer of the said union. Similarly in the absence of any specific allegation of unfair labour practice against the respondent (As admitted by him during his cross-examination that it is correct that I have not made any specific allegation of unfair labour practice against the respondent), it cannot be believed that the petitioner was victimized by the respondent management on account of his trade union activities. Services of the petitioner were terminated vide letter dated 29-1-2000 in terms of clause 4 of the Service agreement, which provide that after satisfactory completion of the probation period, each party can terminate the agreement by giving one month notice to the other party or pay in lieu threof. In case of dismissal from service for misconduct, no notice or pay in lieu thereof will be paid. Therefore the act of termination of services of the petitioner cannot form basis for holding that the respondent committed an act of unfair labour practice. It may pertinently be mentioned that even in his reply dated 8-1-1999 to the Warning letter dated 2-11-1999, of the management, there is no mention that the petitioner was being victimized on account of his trade union activities, while on the other hand in his cross- examination the petitioner admitted that:-- " It is correct that terms of my appointment letter as contained in Exh. P.W./I were binding on me as well as on G.B.C....".
It is correct that I have not made any specific allegation of unfair labour practice against the respondent".
' Though learned counsel for the petitioner has cited so may irregularities in the termination letter and also cited so many citations, but the same are pointless because the Commission would acquire jurisdiction only if it is shown that labour practice has been committed.
14. It has been rightly contended on behalf of the respondent that in the instant case the basic issue against which the petitioner feels aggrieved is his termination from service, therefore the Commission has no jurisdiction to interfere into the matter, because jurisdiction of this Commission is restricted and limited to the cases based on allegation of unfair labour practice. According to law as laid down by the Hon'ble Supreme Court of Pakistan in the case of Iftikhar Ahmad PLD 1988 SC 53 following in 1991 PLC 876, 1988 PLC 923, 1988 PLC 419 and 1994 PLC 31, this Commissior has jurisdiction to interfere only if a case falls within the ambit of section 15 of I.R.O, 1969 and nothing beyond that. This provisions of law provides redress of grievance as arising out of victimization on account of trade union activities only. No other victimization even if proved is actionable by this Commission in exercise of jurisdiction cited by section 22-A (8)(g) of the I.R.O., 1969. In this regard it would be appropriate to quote the dictum of a Full Bench of this Commission in the appeal case, of Nazar Muhammad General Manager T.I.P. Haripur and another v. Ghulam Asghar and 4 others 1988 PLC 923 at P.926 which places its reliance on a judgment of Honourable Supreme Court:-- " The Commission's jurisdiction will extend not because of illegality or irregularity in the action taken by the management but upon evidence that such action impugned upon the provision of section 15 of the I.R.O., In a recent judgment in Iftikhar Ahmed, Vice President, National Bank of Pakistan and others (Civil Appeal No,221 of 1985 PLD 1988 SC 53 and other appeals), the Supreme Court observed: ' It will, therefore, appear that the cases which the Benches are empowered to hear under the clause must have an element of unfair labour practice in them, it does not encompass cases where allegation of unfair labour practice is made. It may be mentioned that section 15 and 16 of the Ordinance set out instance of unfair labour practice on the part of the employer as well as workers. It is therefore not right to construe the clause in question as conferring a general jurisdiction upon the Benches to entertain all kinds of grievance petitions even though they may not be relatable to unfair labour practce...."
' Another judgment on the same subject was also delivered in the case of National Motors Limited v. Muhammad Hanif 1987 PLC 547 at page 550 when Mr. Justice (Rtd.) M.S.H. Qureshi, the then learned Chairman of this Commission, delivering the judgment for the Full Bench of the N.I.R.C., laid down the duties and functions of the Commission in the matters arising out of disciplinary action against the workers as follows:-- "It is necessary to state clearly the duties and functions of this Commission in matters arising out of disciplinary action against workers. In such matter the National Industrial Relations Commission does not, sit in judgment over the action of management against workers as an appellate forum.
The Commission is not concerned with the deficiency if any of law or fact in the aetion and will not set aside the Management's decision merely upon a finding of error in the procedure adopted or for want of sufficiency of evidence upon which the action proceeds. Nor will the Commission interfere only because the action requires correction. They may be the functions of the forum acting under section 25-A of the I.R.O., 1969. The Commission's jurisdiction is and as has rightly been invoked in this case. Under clause (g) of subsection (8) of section 22-A of the I.R.O., 1969, upon allegation of unfair labour practice. In proceedings under this clause, the Commission has to examine, if the Management was motivated by any of the considerations enumerated in section 15(1). For this purpose, the Commission may also scrutinize, if the management's action was based upon no evidence or upon misreading of evidence or was perverse to the evidence or was in colourable exercise of power. For, that, if established will detract from the bona fides of the Management and may lend credibility to the allegation of unfair act. But by itself, this will not be sufficient for reaching a finding of unfair act unless one or more of the ingredients of section 15, which sets out what constitutes unfair labour practice on the part of employer, stands proved independently by factual or circumstantial evidence. The examination of the Management's action is therefore, only collateral, and a mere finding against the correctness of the action will not per se establish unfair labour practice within the meaning of section 15.
15. In this view of the matter while determining whether an unfair labour practice has been committed or not the allegation that the termination letter dated 29-1-2000 violated the most basic tenets of law on the subject would be foreign for consideration by this Bench unless the element of unfair labour practice is first proved to be present. The Commission therefore has no jurisdiction to interfere, unless action of the management is found to have been initiated by way of victimization or unfair labour practice.
16. As discussed above, on a minute examination of the pleadings of the parties and their respective versions, I find that the petitioner failed in proving that on account of his trade union activities his services were terminated by way of unfair labour practice as defined under section 15 of I.R.O.
1969. He has failed to quote any specific instance of lawful trade union activities, but has repeated his allegations of being victimized due to trade union activities. Mere bald allegations of unfair labour practice are not sufficient to prove victimization and make amenable for interference by the Commission, in the circumstances the relief prayed for cannot be granted.
17. To determine the controversy regarding applicability of the provision of I.R.O., 1969 and the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 to the G.B.C.
International School Tarbela, I have given my anxious consideration to the submissions made by the learned counsel for the petitioner and the respondent. In the instant case, it is an admitted position that the G.B.C. International School is an educational institution involved in imparting education and being an independent section of the project has a separate entity. The question whether educational institutions are covered by the provisions of I.R.O., 1969 and West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 has been examined in a number of proceedings by the superior Courts and it has been repeatedly held that any institution where education is imparted will not be covered by the Labour Laws. Reliance can safely be placed upon the judgment of the Honourable Supreme Court of Pakistan in the case of Board of Governors Aitchisan College Lahore v. Punjab Labour Appellate Tribunal and others (2001 PLC 589).
In this context of the matter, I therefore, see no reason to have a different interpretation, accordingly, I have no hesitation in holding that the G.B.C. International School being an independent section of the Ghazi Barotha Contractors is not covered by the term Industry, thus the petitioner does not fall within the definition of worker as defined under section 2(XXVIII) of I.R.O., 1969 or under section 2(1) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 as such he has no entitlement to invoke the jurisdiction of this Commission.
18. Upshot of the above discussion is that the petitioner fails in proving his case, I therefore, no hesitation in holding that this Commission have no jurisdiction to deal with this petition, which is hereby dismissed. Parties are directed to bear their own costs. File is consigned to record.