1. ' GHULAM MUSTAFA MUGHAL, J.--- The above captioned appeal is filed against the judgment of the Labour Court, Muzaffarabad, passed on 8-8-2008, whereby an application under section 30 of The I.R.O., filed by appellant, herein, has been rejected for want of jurisdiction.
2. ' Facts shortly stated are that appellant, herein, was dismissed from the service of the Habib Bank Limited vide order, dated 13-3-2000. Under the prevailing law, he challenged his dismissal order before the Federal Service Tribunal. In some other cases on acceptance of appeals by the Federal Service Tribunal, aggrieved parties went in appeal before the apex Court of Pakistan. Their Lordships vide judgment, dated 27-6-2006 reported as Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others PLD 2006 SC 602 declared the provisions of section 2-A of the Service Tribunals Act, 1973, ultra vires the Constitution.
3. Resultantly, all the appeals filed by the employees of the Banks and others autonomous bodies pending before the Tribunal stood abated. The apex Court' of Pakistan allowed six months time to the aggrieved employees of the Corporations, Banks, etc. To avail the appropriate remedy.
4. Relevant dictum is recorded in para. 109 of the said judgment which is as under:- "109. Now the question is as to what would be the effect of this judgment on the cases pending before this Court and Federal Service Tribunal. In this behalf it may be noted that following the rule of past and closed transactions, laid down in the case of Mehram Ali v. Federation of Pakistan (PLD 1998 SC 1445), it is directed as follows:--
(a) The case which have been decided finally by this Court in exercise of jurisdiction under Article 212(3) of the Constitution shall not be opened and if any Review Petition, Misc. Application or Contempt Application, filed against the judgment is pending, it shall be heard independently and shall not be affected by the ratio of this judgment.
(b) . The proceedings instituted either by an employee or by an employer, pending before this Court, against the judgment of the Service Tribunal, not covered by category (a) before this Court or the Service Tribunal shall stand abated, leaving the parties to avail remedy prevailing prior to promulgation of section 2-A of the STA, 1973.
(c) The cases or proceedings which are not protected or covered by this judgment shall be deemed to have abated and the aggrieved person may approach the competent forums for redressal of their grievances within a period of 90 days and the bar of limitation provided by the respective laws, shall not operate against them till the expiry of stipulated period.
(d) The cases in which the order of Service Tribunal has been implemented shall remain intact for a period of 90 days or till the filing of appropriate proceedings, whichever is earlier.
5. ' The Service Tribunal shall decide pending cases under section 2-A of the STA, 1973 in view of the above observations. However, if any of the cases is covered by clause 'c' (ibid), a period of 90 days shall be allowed to aggrieved party to approach the competent forum for the redressal of its grievance."
6. Basing his claim on the aforesaid direction the appellant, herein, filed an application under section 30 of the I.R.a before the Labour Court, Muzaffarabad for cancellation of his dismissal order on the grounds listed, therein.
7. ' The application was resisted by the respondents on different grounds including the bar of jurisdiction. Through the impugned order, the learned Labour Court has rejected the application on the ground of jurisdiction because in its estimation the employees of the Banks, Corporations and other statutory bodies have been declared as civil servants for the purpose of Service Tribunals Act, 1973, therefore, appellant can invoke the jurisdiction of the Federal Service Tribunal. It is further observed that no law including the I.R.O., 1974, vests any authority to the Labour Court to entertain the applications of the employees of the Banks and Corporations, which are neither under the control of the Jammu and Kashmir Council nor established under the authority of the Azad Government of the State of Jammu and Kashmir.
8. ' Mr. Mujahid Hussain Niaqvi, the learned Advocate for appellant, herein, inter alia, contended that the learned Judge, Labour Court, Muzaffarabad has not attended to the controversy in its true perspective, hence, its order is illegal, erroneous and derogatory to the statutory law. The learned Advocate maintained that' the cases referred to and relied upon by the Labour Court were not attracted after the decision of the Supreme Court of 1Pakistan and the judgments from Azad Jammu and Kashmir jurisdiction are also not applicable. According to him, a workman has been given a statutory right to invoke the jurisdiction of the Labour Court of the concerned area if an adverse order affecting his terms and conditions of service is passed by his employer. He submitted that through the impugned order the right to approach the Court, which has constitutional guarantee is curtailed, hence, by setting aside the judgment, the learned Labour Court be directed to decide the controversy on merits.
9. Mr. Muhammad Idrees Mughal, the learned Advocate for the other side, controverting the arguments submitted that the Labour I Court, Muzaffarabad is established under I.R.O., 1974, and the Azad Jammu and ,Kashmir Legislative Assembly or the Azad B Jammu and Kashmir Council has no legislative competence to enact a law for the employees of the Banks and other Corporations which are neither owned nor controlled by them. He placed reliance- on Writ Petition No,283 of 2006, titled Javed Iqbal Qureshi v. AJ&K Council ' decided on 2-6-2008. The learned Advocate also contended that the application filed on behalf of the appellant, herein, is mala fide because a similar application filed by him earlier- was rejected by the Labour Court, Muzaffarabad.
10. He also argued that the so-called letter issued by the Registrar, Federal Service Tribunal, in the name of 'the appellant, directing him to approach the appropriate forum, after the judgment of the Supreme Court is also fraudulent and collusive. He further argued that appellant is not a workman,, therefore, application filed on his behalf was even' otherwise not r competent.
11. ' I have heard the learned Advocates for the parties and gone through the record of the case.
12. So far as the objection raised by Mr. Muhammad Idrees Mughal, the learned Advocate for the respondents, relating to the jurisdiction of the Labour Court and the competence of the legislative assembly and the Azad Jammu and Kashmir Council is concerned, is devoid of any force. D For proper application of controversy relevant portion of section 31 is reproduced as under:--- Legislative Legislative Powers:--- (1) Subject to the succeeding provisions of this section, both the Council and the Assembly shall have the power to make laws:--
(a) for the territories of Azad Jammu and Kashmir;
(b) for all State subjects wherever they may be; and
(c) for all officers of the Council or as the case may be, the Government, wherever they may be.
(2) Subject to subsection (3):--=
(a) the Council shall have exclusive power to make laws with respect to any, matter in the Council Legislative List set out in the Third Schedule, hereinafter referred to as the Council Legislative list; and
(b) the Assembly shall, and the Council shall not, have power to make laws with respect to any matter not enumerated in the Council Legislative list.
(3) Neither the Council nor the Assembly shall have the power to make any law concerning:-
(a) the responsibilities of the Government of Pakistan under the UNCIP Resolutions;
(b) the defence and security of Azad Jammu and Kashmir;
(c) the current coin of the issue of any bills, notes or other paper currency; or
(d) the external affairs of Azad Jammu and Kashmir including and foreign aid.
(4) No tax shall be levied for the purposes of the territories of Azad Jammu and Kashmir except by or under the authority of an Act of the Council or the Assembly.
(5) No law shall be repugnant to the teaching and requirements of Islam as set out in the Holy Qur'an and Sunnah and all existing laws shall be brought in conformity with the Holy Qur'an and Sunnah."
13. ' Under the provision of the Azad Jammu and Kashmir Interim Constitution Act, 1974 reproduced hereinabove, both the Council and the Assembly have the legislative competence to make laws within their allocated spheres in view of section 31 of the Interim Constitution Act. The restrictions on the legislative powers of the Council and the Assembly are enumerated in subsections (3) and (5) of section 31.
14. ' Similarly, the Council is not authorized to make laws with respect to any matter not enumerated in the Council legislative list, which is provided in the 3rd Schedule. For all the other matters, it is only the Legislative Assembly, which is vested with the powers to enact laws. Clause (a)(1) of section 31, when read with clause (b)(2) of the said section, it becomes crystal clear that the Azad Jammu and Kashmir Legislative Assembly has all the powers to legislate for the territories of Azad Jammu and Kashmir. This power includes the powers to enact the laws relating to the formation of trade unions, regulations and relations between the employer and the employee etc. And the same is the basic purpose of the Azad Jammu and Kashmir Industrial Relations Ordinance, 1974, as is evident from its preamble. In Javed Iqbal Qureshi's case, relied upon by Mr. Muhammad Idrees Mughal, the learned Advocate for the respondents, this Court held that both the Council and Legislative Assembly of Azad Jammu and Kashmir have no control over the private Banks working in Azad Jammu and Kashmir and no constitutional guarantee is available to the employees of the Banks.
15. This view was in light of the restrictions embodied in section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, through which the writ jurisdiction on this Court has been conferred.
16. The jurisdiction, so conferred, is subject to the restrictions and conditions, mentioned in the said section. In these circumstances, the apex Court of Azad Jammu and Kashmir as well as this Court, decided some cases holding that Banks are private persons and the Council or the Government has no control over them, therefore, writ cannot be issued against a private person, irrespective of the fact that the Council has to coordinate with the banks. The Azad Jammu and Kashmir Industrial Relations Ordinance, 1974, regulates the formation of tradq unions, relations between the employer 'and the employee and the settlement of any E differences or disputes arising between them.
17. Under section 2(6) of the Industrial Regulations Ordinance, the "employer" has been defined as under:--- 2(6) "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) an heir successor or assignee, as the case may be, of such person or body 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 Government, the authority appointed in this behalf or where no authority is appointed, the Head of the Department;
(d) in relation to an establishment run by or on behalf of a local authority, the officer appointed in this behalf or where no officer is so appointed, the Chief Executive Officer of that authority; ' Special provision. For the purpose of distinction from the category of "workers or workmen", officers and employees of a department of the Government or a local authority who belong to the superior, managerial, secretarial, directional, and supervisory or agency staff and wit) have been notified for this purpose in the official Gazette shall be deemed to fall within the category of employers.
(e) In relation to any other establishment, the proprietor of such establishment and every Director, Manager, Secretary, agent or officer or person, concerned with the management of the affairs thereof."
18. ' Similarly, the terms "establishment" and the "industrial disputes" have been defined under clauses
(7) and (13) of the said section as under:---
(7) "Establishment" means any office, firm, industrial unit, undertaking shop or premises in which workmen are employed for the purpose of carrying on any industry,
(8) .
(9) .
19. (10)
20. (11)
(12) .
(13) "Industrial Dispute" means any dispute or difference between employers and employers or between employers and workmen or between workmen and workmen, which is concerned with the employment or non-employment or the terms of employment or the conditions of work of any person;"
21. No doubt that the Banks working in Azad Jammu and Kashmir are not under the direct control of the Azad Jammu and Kashmir Council and the Government but the fact remains that the Company Laws have been adopted in the Azad Jammu and Kashmir and for carrying out the purpose of the Company Laws, these banks have to get registered themselves in the Azad Jammu and Kashmir with the Registrar of the Joint Stock Companies, therefore, it can be held that the law under which the Labour Courts and the Appellate Tribunal have been established for redressal of the grievances of the employees and the employers, and other trade and> industrial disputes has been enacted competently. In view of above, I am of the considered opinion that the Labour Court was vested with the jurisdiction to decide the controversy brought before it under section 30 of the Industrial Relations Ordinance, 1974. It may be stated that the learned Labour Court has dismissed the application filed by the appellant, herein, relying on section 2-A of the Federal Service Tribunals Act, 1973, which has already been struck down by the apex Court of Pakistan. Therefore, the judgment under challenge, on the face of it, is erroneous and illegal. The other questions raised on behalf of Mr. Muhammad Idrees Mughal, the learned Advocate for the respondents, relate to the facts of the case which can be decided only after recording evidence of the parties. These questions, i.e, the filing of second application in respect of the same cause, issuance of bogus letter from the Federal Service Tribunal in favour of the appellant, herein, etc. Are left open. All these questions shall be decided by the learned Labour Court after recording evidence of the parties.
22. The upshot of the above discussion is that the appeal is accepted and the judgment of the Labour Court dated 8-8-2008 is hereby set aside. The learned Labour Court is directed to proceed in the matter in accordance with law.