MUHAMMAD KHALID MEHMOOD KHAN, J.--- Through this constitutional petition, the petitioner prays as under:--- "Under the circumstances, it is, therefore, most respectfully prayed that this writ petition may kindly be accepted and the order dated 12-1-2010 passed by respondent No,1 beyond the period of 20 days, may be set aside and the respondent bank may be directed to reinstate the petitioner, pending the appeal".
2. The petitioner's application under section 46 of the Industrial Relations Ordinance, 2002 was allowed by the Punjab Labour Court No,5, Sargodha vide order dated 23-11-2009. Against the said order, respondents Nos.3 to 5 filed appeal under sections 54(3) and 55 of the Industrial Relations Act, 2008 (hereinafter referred to as "Act of 2008") before the Punjab Labour Appellate Tribunal, Lahore. Punjab Labour Appellate Tribunal on 12-1-2010 directed the parties to maintain status quo.
3. Learned counsel for the petitioner submits that in terms of section 55(9) of Act of 2008, after expiry of twenty days the status quo order stands vacated. The petitioner requested learned Labour Appellate Tribunal to declare that status quo order passed on 12-1-2010 is no more in existence; learned Labour Appellate Tribunal orally refused to declare that status quo order stands vacated and the respondents Nos.3 to 5 are bound to reinstate the petitioner. Learned counsel submits that admittedly the petitioner has been reinstated by the learned Labour Court, the learned Punjab Labour Appellate Tribunal has no doubt passed the order for maintaining status quo on 12-1-2010, but under the then prevailing law i,e, Act of 2008 the maximum life of the status quo order is twenty days and in case the appeal is not decided within twenty days, the impugned order will automatically come to an end. Learned counsel submits that the Act of 2008 has been repealed and Punjab Industrial Relations Act, 2010 (hereinafter referred to as "Act of 2010") has been promulgated, under section 47(11) of Act of 2010 the maximum life of restraining order is ninety days and in case the appeal is not decided within ninety days, under section 47(12) of Act of 2010 the restraining order/ status quo order becomes lifeless. Learned counsel submits that status quo order dated 12-1-2010 becomes non-existent after expiry of ninety days under the Act of 2010 and the petitioner becomes entitled to be reinstated as per order of the learned Labour Court. The respondent No,1 was not justified to orally refuse to issue direction for the reinstatement of the petitioner. He has also relied on Muhammad Aslam v. Punjab Labour Appellate Tribunal Lahore and 2 others (1997 PLC 6) and Kohinoor Cotton Mills Ltd., Miartwali v. Punjab Labour Appellate Tribunal and 2 others (1980 PLC 8000.
4. Learned counsel for the respondent submits that the appeal has been admitted for regular hearing and as such the impugned order will remain in abeyance unless the appeal is finally decided. He has relied upon E.A. Evans v. Muhammad Ashraf (1979 SCM R 515) and Fateh Muhammad and others v. Member, Board of Revenue, Punjab and others (1978 SCM R 454). Learned counsel further submits that Act of 2008 stands repealed and Act of 2010 has been promulgated on 9-12-2010 and as such the petitioner's request for reinstatement was rightly refused by the learned respondent No,
1. It is further submitted that the petitioner is not a workman and the judgment of the learned. Labour Court is without, lawful authority and is not executable. He further submits that after the final decision of the appeal the matter of petitioner's reinstatement will be finalized. Learned counsel submits that condition for deciding the appeal within 90 days is directory and not mandatory and if the argument of learned counsel for petitioner is allowed to prevail, the right of appeal becomes illusory.
5. Heard. Record perused.
6. It is an admitted fact that the petitioner's grievance petition was allowed and the petitioner was directed to be reinstated in service by the learned Labour Court. The learned Punjab Labour Appellate Tribunal passed the status quo order on 12-1-2010 under the then prevailing law.
7. Section 55(3) of the defunct Act of 2008 is read as under:--- "The Tribunal may, on appeal, confirm, set aside, vary or modify the award or decision given under section 41 or section 51 or a sentence passed under clause (c) of subsection (4) of section 52 and shall exercise all the powers conferred by this Act to the Court, save as otherwise provided. The decision of the Tribunal shall be delivered as expeditiously as possible, within a period of sixty days following the filing of the appeal, provided such decision shall not be rendered invalid by reason of any delay in its delivery."
7. Section 55(9) of the Act of 2008 is read as under:--- Notwithstanding anything contained in subsection (3) if in an appeal preferred to it against the order of a Labour Court directing the reinstatement of a workman, the Tribunal makes an order staying the operation of the order of the Labour Court, the Tribunal shall decide such appeal within twenty days of its being preferred:
(a) be binding on all parties to the industrial dispute;
(b) be binding on all other parties summoned to appear in any proceedings before a Labour Court as parties to the industrial dispute, unless the Court specifically otherwise directs in respect of any such party;
(c) be binding on the heirs, successors or assignees of the employer in respect of the establishment to which the industrial dispute relates where an employer is one of the parties to the dispute; and
(d) where a collective bargaining agent is one of the parties to the dispute, be binding on all workmen who were employed in the establishment or industry to which the industrial dispute relates on the date on which the dispute first arose or who are employed therein after the date: Provided that, where a collective bargaining agent or trade union performing the functions of a collective bargaining agent under section 71 exists, the employer shall. Not enter into a settlement with any other trade union, and any contravention of this provision shall be deemed to be an unfair labour practice under section 17".
9. The learned Labour Tribunal being appellate court thus rightly passed the order for maintaining the status quo on 12-1-2010.
10. During the pendency of the appeal Act of 2008 stands repealed and Act of 2010 was promulgated.
11. Section 47(11) of Act of 2010 is read as under:---
(11) Notwithstanding anything contained in subsection (3), if in an appeal preferred to it against the order of a Labour Court directing the reinstatement of a workman and the Tribunal makes an order staying the operation of the order of the Labour Court, the Tribunal shall decide such appeal within ninety days."
14. Section 47(12) of Act of 2010 is read as under:- "(12) If an appeal under subsection (11) is not decided within the period of ninety days, the interim order of the Tribunal shall stand vacated on the expiration of that period".
13. Admittedly the respondents filed appeal under the repeal Act of 2008 and under section 55(9) of Act of 2008 the Appellate Tribunal was bound to decide the appeal within twenty days but it was not specifically provided that after the expiry of twenty days, what will be the fate of restraining order. This means in the absence of any penal provision, the direction to decide the appeal may be called directory and not mandatory but after the promulgation of Act of 2010 the things are very clear.
14.. Section 47(12) of Act of 2010 is read as under:--- "(12) If an appeal under subsection (11) is not decided within the period of ninety days, the interim order of the Tribunal shall stand vacated on the expiration of that period."
15. Similar provision was available in Industrial Relations Ordinance, 1969, under section 2 clause (xxxviii) and the maximum time provided for disposal of appeal was provided twenty days and this Court repelled the argument of the respondents' counsel that even after the . Expiry of twenty days the interim order will continue {Muhammad Aslam versus Punjab Labour Appellate Tribunal Lahore and 2 others (1997 PLC 6) and Kohinoor Cotton Mills Ltd., Mianwali v. Punjab Labour Appellate Tribunal and 2 others (1980 PLC 800t) (1997 PLC 6 and 1980 PLC 800f)}.
16. The argument of learned counsel for the respondents that the provisions of section 47(12) of Act of 2010 are directory and not mandatory, is not on sound footing. Section 47(12) of Act of 2010 specifically provides the effect of non-disposal of the appeal within ninety days, that restraining order will be deemed to be vacated.
17. In view of the above, the petition is allowed and it is declared that the status quo order dated 12- 1-2010 passed by the Punjab Labour Appellate Tribunal, Lahore came to an end after ninety days of promulgation of Act of 2010 and the petitioner becomes entitled to be reinstated.