' ABDUL GHIAS NOUSHERWANI (MEMBER).--- This appeal is directed against the judgment dated 15- 9-2011 passed by 1st Labour Court Balochistan whereby petition filed by respondent under section 41 of BIRO, 2010 was accepted.
2. The brief facts for filing of instant appeal are that the respondent filed petition against his termination from service order dated 21-6-2010 wherein it is contended that initially his service were terminated on 17-5-2000 against which he filed Case No 43/2006 before Learned Labour Court which was accepted vide order 30-8-2008. It is further contended that on 7-10-2008 the respondent reported his arrival but the respondent did not accept his arrival report till 17-12-2009 and 24-12-2009. However thereafter the respondent was posted at Pishin and the salary being back benefit has not been released which resulted bad to worst financial position of respondent getting loan from the branch manager and continuously requested for his transfer to Quetta and release of his salary. However according to him on 10-2-2010 he was verbally transferred from Habib Bank Limited Pishin branch to Quetta and he continuously attended regional head quarter by filing application for release of salary which annoyed appellants and they issued show cause notice dated 1-4-2010 on the ground of absence from duty. after the reply of show-cause notice appellants issued inquiry notice dated 14-5-2010. Thereafter inquiry was conducted unlawfully inspite of the fact that the respondent highly objected. Consequently when the respondent was on his duty at regional head quarter he was delivered termination order dated 21-6-2010. Against termination order the respondent issued grievance notice dated 2-9-2010 which was followed by grievance petition. After necessary proceedings petition was allowed.
3. The learned counsel for appellant mainly contended that the learned Labour Court passed impugned judgment without jurisdiction for the reason that under IRO. 2011 such powers conferred to NIRC where the bank have its establishment in more than one provinces. Secondly contended that the conduct of respondent was against the welfare of the bank, straightaway from 2008.
Thirdly agitated that grievance notice has not been served according to mandatory provisions.
Lastly submitted that according to law inquiry was conducted wherein the respondent participated. The learned counsel for respondent on the other hand strongly opposed that the order impugned was passed without jurisdiction for the reason that the instant petition has been filed in 2010 whereas the learned counsel for appellant referred IRO, 2011 which is not applicable in view of 18th Amendment of Constitution. Further contended that IRC is not established in Balochistan and for this purpose the learned counsel himself filed a constitution petition whereof the Government of Balochistan submitted its reply wherein it is stated that such power of commission will be entrusted to Labour Court. With regard to conduct of respondent the learned counsel submitted that the respondent was performing his duty but it was, the bank that after order of learned Labour Court dated 30/8/2008 the respondent was not reinstated for 16th months inspite of his arrival report dated 7-2-2008. The learned counsel contended that grievance notice was served through registered post and TCS and such copies are already tendered by the respondent in his statement. Next contended that the inquiry was not conducted according to law inspite of objection raised by the respondent. Lastly the learned counsel contended that it is very surprising that according to the bank representative more than 200 officers working in Balochistan but no one of them has been appointed for the purpose of inquiry and a favorite person called from Sakhar, which indicate the mala fide of the bank authority.
4. The first objection of learned counsel for appellants with regard to jurisdiction of Labour Court is that according to learned counsel under the scheme of IRO, 2011 only NIRC is competent for the matters relating to employers and employees having its establishments in more than one province. On examination of above mentioned IRO it appears that IRA, 2012 was introduced and the IRO, 2011 is not in field. Section 3 of IRA, 2012 states, "It shall apply to all persons employed in any establishment or industry, in the Islamabad Capital Territory or carrying on business in more than one province"
The above quoted section 3 if read with section 34(2), section 54(a) and explanation of section 57 then the same clearly state that the jurisdiction of NIRC is confined to the matters affecting the affairs of establishments and employees within entire country or within the provinces where the employer has more establishment then one Province and trade union or CBU representing such employees having their membership in more than one province further to the matters of unfair Labour practice.
5. It will be better to see the back ground of legislature with regard to Labour welfare. Initially the matters relating to 'welfare of Labour and trade union were mentioned in the concurrent legislative Iist at items Nos.26 and 27 as such the Federal Government as well as Provincial Government both were competent to make legislation in that behalf. The Federal Government promulgated the IRA, 1969 which was repealed by the IRO, 2002 and same was also repealed by IRA, 2008. Section 87(3) of ,the IRA, 2008 provided that the, said Act shall unless repealed earlier stand repealed on 30-4- 2010. Hence it was temporary legislation which was to die on 30-4-2010 automatically if it was not extended by legislative measure. Before the repeal of IRA, 2008 on 20-4-2010 18th Constitutional Amendment was passed where by the concurrent legislative list was abolished and the matters relating to Labour and trade union were transferred to legislative competence of provincial Government. Meaning thereby that the matter relating to Labour and trade union came under the legislative of respective province. After 18th Constitutional Amendment the Government of Balochistan like other provinces issued BIRO, 2010 which was repealed by BIRA, 2010 under which the Labour Courts as well as Appellate Tribunal were created and working under the same law.
6. For further clarification as stated hereinabove that section 3 of IRA if read with the following Sections the matter will be cleared about the jurisdiction of NIRC and Labour Courts.
7. Section 34(2) of IRA, 2012 states, "Notwithstanding anything contained in this Act, a federation of trade unions or federation may, if it is a collective bargaining agent, raise an industrial dispute affecting all employers or workers of the establishments represented by that federation and a decision of the Commission shall be binding on all such employers and workeRs,"
' The above mentioned section clearly indicates that the matter of industrial dispute affecting all employers or workers of the establishment in more than one Province in other words any industrial dispute which equally exist in more than one province in different establishment fall under the jurisdiction of NIRC. Further it is clarified that if the trade union or federation representing such employees in more than one establishment in different provinces.
8. Section 54(a) of IRA, 2012 states, "(a) to adjudicate and determine an industrial dispute in the Islamabad Capital Territory and trans-provincial to which a trade union or a federation of such trade unions is a party and which Is not confined to matters of purely local nature and any other industrial dispute which is, in the opinion of the Government, of national importance and is referred to it by that Government."
The above quoted section clearly confirmed that the matters of purely local nature are not under the jurisdiction of NIRC. In case in hand the matter relates to an individual pertaining to the termination of his services which not only apparently a matter of local nature but also cover under BIRA, 2010.
9. The explanation of section 57 further deals with such jurisdiction which states, "Explanation--- The expressions "industry-wise trade union" and "federation of such trade unions" refer to a trade union membership of which extends to establishments in more than one province and a. Federation of trade unions whose membership 'extends to registered trade unions in more than one province."
' The above explanation also clears the point of jurisdiction that if industry-wise trade union and federation of their membership extends to establishment in more. Than one province but here in the, case in hand the position is not so as mentioned hereinabove therefore the objection/ contention of learned counsel for appellant with regard to jurisdiction is not sustainable under the circumstances of the case mentioned hereinabove.
10. The, next point of learned counsel for appellant with regard to the conduct of respondent is also out of consideration for the reasons that in the 1st litigation the respondent was ordered to .Be reinstated on 30-8-2008 whereof the respondent reported his arrival on 7-10-2008 but till 17-12- 2009 and 24-12-2009 he was not posted and thereafter no salary. Was paid to .Him and he was not reinstated according to law by the order' of the court. The word "reinstate" has been defined in Black Law's dictionary as under, "Reinstate. To installs; to re-establish, to place again in the former state, condition, or office, to restore to a state of position from which the object or person had been removed."
It appears that respondent has not been restored to his original position or office from which he was removed. The available record reveals that he was not reinstated on one pretext and the other for more F than 16th months. Therefore such objection is not sustainable in the eye of law.
11. The learned counsel strongly agitated that grievance notice has not been served and no such proof has been provided by the respondent. The receipts of TCS and registered post are available at page 59 of the record which gain support from courier shipment at pages 60 and 61. In rebuttal of above mentioned documents nothing produced by the appellant to prove their contention even in cross-examination of respondent/applicant no such suggestion put to him therefore this objection is ruled out.
12. The last and final contention of the learned counsel for appellant is with regard to inquiry conducted against the respondent by the appellants. According to him the inquiry was conducted according to law. From perusal of inquiry proceedings it appears that the objection raised by the respondent/applicant on very day i,e, 27-5-2010 wherein the respondent/applicant was not allowed to produce any evidence. However without touching the merit and demerit of inquiry proceedings the same has been conducted by an officer namely Mr. Muhammad Ashraf S.M-I, RHQ- Shakar and according to counsel for respondent more than 200 officers were working at that time in Balochistan but he was chosen for a special purpose from Shakar. However the inquiry officer has not been produced to submit/tendered the inquiry report and explain such requirements. The inquiry report has been tendered by Mr. Allah Noor Tareen regional manager in the shape of photo states copies even the same were not attested meaning thereby that the inquiry report has not been submitted according to Article 75 of Qanun-e-Shahadat Order. In this, respect honorable Supreme Court of Pakistan in reported judgment in PLD 2002 Supreme Court 84 held, "Photo copy of documents.--- Such document cannot be taken into consideration merely by tendering a documents in evidence the same has no evidentiary value unless its contents are proved according to law."
' Another judgment reported in 2005 YLR 2007 held, "Copy without proving the case for secondary evidence is inadmissible in evidence"
' Due to above reason the same cannot be considered according to law.
13. The respondent in his grievance petition sought the following relief, "It is therefore, respectfully prayed that this honorable Court may be pleased to set aside the illegal termination Order No,AHK/MAB/381036 dated 21-6-2010 and the applicant may be reinstated in service with all back benefits and continuity of a service from retrospective effect, in the interest of law and justice.
In view of circumstances of the case and relief sought by respondent no power available with the Tribunal to allow back benefits with retrospective effect in another case. The judgment/order dated 15-9-2011 passed by 1st Labour Court Balochistan Quetta is neither arbitrary nor perverse to invite interference by this Tribunal in appeal. Consequently the above said order is maintained with the direction that respondent be reinstated from the date of his termination dated 21-6-2010 with all back benefits admissible under the law/Rules of the bank. Consequently appeal is dismissed. In view of the circumstances of the case the parties are left to bear their own cost.
14. The copy of order along with original record of trial court be sent to trial court. Case after completion be consigned to record.