'Shahid Anwar Bajwa, J.--In this constitutional petition the following prayers are made:--
(a) Set aside the impugned order dated 19.07.2012 and hold that in view of the provisions of Standing Orders Ordinance, 1968, it is only the Labour Court which has the jurisdiction to entertain and adjudicate upon the grievance of the petition.
(b) Hold and declare that the promulgation of IRA, 2012 does not affect the proceedings of the petitioner.
(c) Suspend the operation of impugned order dated 19.07.2012 to the extent of point of limitation. kid and declare that the case No which has been returned by the Labour Court continues pending before it at the stage obtaining prior to passing of the impugned order.
(e) Any other or additional relief which may be deemed fit and proper in the circumstances of the case.
2. Facts for the purpose of decision in this petition are that on 19.07.2012 an order was passed by the Presiding Officer, Sindh Labour Court No, 1 by which order 45 Grievance Petitions were returned to the applications for presentation before proper judicial forum. Applicants before the Labour Court were employees of various organizations which had branches in more than one provinces 18th Amendment to the Constitution abolished concurrent list which included items of labour laws and Trade Unions. The Industrial Relation Act, 2008 had provision in Section 87 mandating that the Act of 2010 would unless sooner repealed shall stand repealed on 30.4.2010. On 18.7.2011 the Industrial Relation Ordinance, 2011 was promulgated which has now been followed by the Industrial .Relation Act, 2012. These two have been promulgated by the Federal Government; enacted by the Parliament for trans provincial establishment. Grievance petitions of applicants who were employee of KESC and many other organizations such as Banks, Duty Free Shops Limited, Utility Stores Corporation Limited etc. were pending in the Sindh Labour Court. No, 1-when applications were filed by the managements with a prayer that grievance petitions be dismissed as the respondent management has trans provincial status because it has branches and offices in all the 4 provinces as well as in Islamabad and jurisdiction in respect of individual grievance has been conferred upon the National Industrial Relations Commission, (NIRC).
3. Learned Labour Court noticed items in Federal Legislative list i,e, Trans Provincial, Trade and International Treaties and then observed as under:-- "28. In this background it has to be seen whether not framing the law in consonance with International Convention is a Violation of International commitment given by the state or not? And whether the President can promulgate laws for fulfilling obligation under International convention?
29. Islamic Republic of Pakistan is a Federal Republic comprising of four provinces, Baluchistan, Khyber Pukhtoonkhuwa, Punjab, and Sindh, Islamabad Capital Territory, Federally Administered Tehsil Area and such states and territories as are, or may be included, whether by accession or otherwise. There is parliament comprising of public chosen representative of its all components this show that Federation of Pakistan is based on cooperative Federalism, the sovereign authority vest in the parliament, the parliament has delegated certain powers, to provinces to the extent of provincial territories and as such the constitution scheme sovereignty is not a duel, for example the provinces have no power and authority to amend the constitution, the provinces have no powers to grant passport to anyone, nor can issue National Identity Cards etc. the sign of sovereignty, so in my humble opinion the powers to honour the international commitment in only with the Federation."
4. Thereafter it came to the conclusion that in terms, of Section 33 of the Act of 2012 the applicants be directed to bring individual grievances before the NIRC and consequently it ordered that grievance petitions be returned.
5. It may be pointed out that in certain cases where workers approached NIRC, the managements (including management of KESC) approached this Court contending that after deletion of relevant entries by 18th Amendment in the Constitution the Parliament cannot legislate on subjects of labour and trade unions. Notices in those petitions were issued and proceedings before NIRC, through interim orders, were suspended. Subsequently a Full Bench has been constituted, by the Honourable Chief Justice. to consider question as to whether the Industrial Relation Ordinance, 2011/the Industrial Relation Act, 2012 is ultra vires of Constitution of not.
6. Learned counsel for petitioner referred to prayer clause and stated that he has not challenged vires of the Industrial Relation Act, 2012. He submitted that petitioner has approached Labour Court under Standing Order 12(3) of the Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968 and not under any provision of the Industrial Relation Ordinance, 2011 or the Industrial Relation Act, 2012. He submitted that definitions in the Industrial Relation Act are not attracted in the cases under Standing Orders Ordinance. He relied upon Abdul Razzaq u. Messrs Ihsan Sons Limited and 2 others (1992 SCM R 505), Mustehkum Cement Limited through Managing Director v. Abdul Rashid and others (1998 PLC 172), Pak Arab Refinery Limited v. Muhammad Rashid (1999 SCM R 373), Fauji Sugar Mills through General Manager v. Mehmood Ahmed (NLR 2007 TD 193), Pakistan Engineering Council v. Registrar, Trade Unions and another (1998 PLC 477), and Abdul Sattar v. Vth Sindh Labour Court, Karachi and 2 others (1984 PLC 181).
7. Mr. Mahmood Abdul Ghani learned counsel for Respondent 3 . submitted that petition is not maintainable because Respondent No, 3 is a privatised organization. He relied upon S.M. Ghreeb Nawaz Daccawala v. KESC and others (C.P. 106-K of 2007) decided by the Supreme Court on 23.10.2008 and Judgment by the Division Bench in Nasimddin Ghori v. Federation of Pakistan through Secretary and 4 others (2010 PLC 323). Learned counsel referred to order passed by the Sindh Labour Appellate Tribunal on 7.6.2012 which in the following words:-- "07.6.2012 (summer vacation)
Heard Mr. Sakhiullah Chandio learned Counsel for the applicant/PTCL, he states that he is aggrieved with the impugned order dated 23.5.2012 passed by the learned Presiding Officer, Sindh Labour Court No,V, Karachi, who has.no power to transfer the R&Ps. pending before it to the, learned NIRC, Karachi. He further submitted that when a Court having no jurisdiction, has wrongly exercised such jurisdiction. In support of his contention he has relied upon P.L.D. 1973 S.C. 368.
The above contention of Mr. Chandio requires consideration. . Issue preadmission notice to the respondent."
8. Learned counsel submitted that since Labour Appellate' Tribunal had itself suspended order of Labour Court, therefore, it would be appropriate for, the High Court to wait for judgment by Labour Appellate Tribunal. He next submitted that appeal is available to Sindh Labour Appellate Tribunal.
He next submitted that after 18th Amendment the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 is no longer valid law and in this regard he relied upon judgment by a Single Judge of Lahore High Court in Syed Imran Ali Shah v. Government of Pakistan, through Secretary Human Resources, etc. (Writ Petition No, 1579 of 2012) judgment announced on 12.4.2012 and an order by a Division Bench of Peshawar High Court, Peshawar in,W.P. No,1233 of 2012 passed on 17.5.2012. Learned counsel next submitted that under Standing Order 12(3) reference is made to Section 25-A of the Industrial Relation Ordinance, 1969 and the Industrial Relation Ordinance, 1969 is no longer in existence: Learned counsel frankly conceded that- NIRC. has no jurisdiction because the Industrial Relations Act, 2012 is ultra vires. While concluding learned counsel submitted that in his opinion matter may be remanded back to Labour Court where Labour Court may be directed to, while assuming the Industrial Relations Act, 2012 as a valid law, consider and decide whether grievance petitions in respect of rights guaranteed under, Standing Order 12(3) are maintainable before the Labour Court or not. Learned counsel further submitted that as far as vires of the Industrial Relation Act, 2012 is concerned, that must await decision by the Full Bench of this Court.
9. While exercising of his right of reply learned counsel for petitioner submitted that matter in which orders were passed on 07.06.2012 by Labour Appellate Tribunal was only in respect of transfer the matter to NIRC. Return of grievance petitions has not been challenged.
10.We have heard submissions made' by the learned counsel and have also gone through the record as well as case law cited at the bar.
11.We may first refer to contention of Mr. Mehmood A. Ghani that Standing Order 12(3) reference is made to Section 25-A of the Industrial Relation Ordinance, 1969 and the Industrial Relation Ordinance 1969 has since been repealed. For ready reference Standing Order 12(3) is reproduced as under:-- "(3) The services of a workman shall not be terminated, nor shall a workman be removed, retrenched, discharged or dismissed from service, except by an order in writing which shall explicitly state that reason for the -action taken. In case a workman is aggrieved by the termination of his services or removal, retrenchment, discharge or dismissal,, he may [take action in accordance with the provisions of] Section 25-A of the Industrial Relations Ordinance, 1969 (XXIII of 1969), and thereupon the provisions of the said section shall apply as they apply to the redress of an individual grievance."
12.Reference may be made to Section 8 of the General Clauses Act, which section provides as under:-- "8. Construction of references to revealed enactments.--Where this Act, or any [Central Act] or Regulation made after the commencement of this Act, repeals and re-enacts, with or without modification, any provision of a former enactment, then reference in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted].
13.A bare reading of Section 8 indicates that where an Act is repealed and in its place a new Act is enacted and reference has been made in any law to any provision of the former act, then reference to any provision so repealed shall, unless a different intention appears is to be construed as reference to the provision so re-enacted. Contention is, therefore, repelled.
14.Another contention of Mr. Mehmood A. Ghani was that since entries relating to Labour and Trade Unions have been deleted, therefore, Industrial and Commercial Employment (Standing Orders) Ordinance is no longer a valid law. Complete answer to this question is in Article 270AA(6) of the Constitution, which provides as under:--
(6) Notwithstanding omission of the Concurrent Legislative List by the Constitution (Eighteenth Amendment) Act, 2010, all laws with respect to any of the matters enumerated in the said List (including Ordinances, Orders, rules, bye-laws, regulations and notifications and other legal instruments having the force of law) in force in Pakistan or any part thereof, or having extraterritorial operation, immediately before the commencement of the Constitution (Eighteenth Amendment) Act, 2010, shall continue to remain in force until altered, repealed or amended by the competent authority!'
15. A bare reading indicates that it provides that consequent upon omission of concurrent list all laws, with respect any matter enumerated in the list shall continue to remain in force until altered etc. by the competent legislature. It may be pointed out that when West Pakistan was dissolved it was provided under Article 19 of the Provinces of West Pakistan (Dissolution) Order, 1970 as under:-
19. Continuation and adaptation of existing law.--(1) Except 'as expressly provided by or under this Order all existing laws shall continue in force, so far as applicable and with the necessary adaptations, until altered, repealed or amended by the appropriate Legislature or other competent authority.
(2)For the purpose of bringing the provisions of any existing law into accord with the provisions of this order, in relation to laws in the Central legislative field, the President, and in relation to other laws, the Governor of the Province concerned, may by order, make such adaptations, whether by way of modification, addition or omission, as he may deem necessary or expedient, and, any order so made shall, unless otherwise provided therein take effect or be deemed to have taken effect on the appointed day.
(3)Any Court, tribunal or authority required or empowered to enforce an existing law shall, notwithstanding that no actual adaptations have been made in such law by an order made under clause (2), construe the law with all such adaptations as are necessary to bring it into accord with the provisions of this Order."
16. It is in view of this position that many of the West Pakistan enactments such as Land Revenue Act, Motor Vehicle Ordinance and many other laws continue in force in the province of Sindh and they have, been frequently amended by the Provincial Legislature. Learned counsel for respondent referred to judgment of the Lahore High Court in Syed Imran Ali Shah's case, what was challenged in the petition was administration and control of the Employees Old Age Benefit Institution to Human Resources Development Division by the Federal Cabinet. In W.P. No,1233 of 2012 the Industrial Relation Act, 2012 was not challenged and only interim order was passed. Cases are clearly distinguishable.
17. This brings us to the moot question. In Messrs Coca Cola Beverage Pakistan Limited through Authorized Officer/Industrial Relations Manager v. Registrar Trade Unions Sindh and 3 others (2010 PLC 48) definition of workman given in the Industrial Relations Act, 2008 was considered, a large number of case law was referred and thereafter it was held as under:-- "24. To summarize the above discussion:
(i) a worker who has been dismissed, discharged, retrenched, terminated or otherwise removed from employment no longer falls in the definition of workman except as stated herein below;
(ii) If such dismissal etc, has taken place in consequence of industrial dispute or has led to an industrial dispute then such person is included in the definition of workman;
(iii) but only for the purpose of any proceedings relating to an industrial dispute under the Industrial Relation Act, 2008;
(iv) Such dismissed etc, workman comes to Labour Court by virtue of specific provisions contained in Standing Order 12(3) and not by virtue any provision contained in the I.R.A.
(v) Such person is therefore, not a workman and is not entitled to participate or vote in any referendum or balloting under Section 24; (vi)He cannot participate in any election of the Union except when he falls within the 25% of outsiders who are permitted to be office-bearers of the union. Such outsiders are not permitted to be member of the Union. Therefore they can become office-bearers without being members Since they are not members they cannot vote in any such election.
(vii) Pendency of grievance petition in a Labour Court or proceedings before N.I.R.C. does not affect status of such a person.
(viii) However, if interim order has been passed by a Court of law and the employer has acquiesced in the order the employer can not challenge participation by such a workman in such proceedings."
18.It may be pointed out that this judgment by Single Bench was followed by Lahore High Court in Sohail Shaukat and others v. Labour Department and others (2010 PLC 265). Since a dismissed workman (two exceptions as provided are not involved here) .is not workman for the purpose of the Industrial Relation Ordinance, 1969 as well as Industrial Relation Ordinance, 2011 or the Industrial Relation Act, 2012, a dismissed workman cannot approach Labour Court for redressal of any of his grievance. This aspect has been considered by the Supreme Court in Mustehkum Cement Limited's case (supra) in the following words:-- "9-A. The provisions of Standing Order 12(3), therefore, indicate that it allows right to a workman who is aggrieved by termination of his services or removal, retrenchment, discharge or dismissal to seek redress in accordance with the provisions of Section 25-A of the Ordinance. The words "and thereupon the provisions of the said section shall apply as they apply to the redress of an 'individual grievance" clearly indicate that for the purpose of redressal of such grievance the procedural provisions of Section 25-A have been extended to Standing Order 12(3) and the, said provisions shall apply in the same manner as they would apply in case of an individual grievance referred to in the said section. It, therefore, .clearly follows that right to seek redress has been, made available to such workman, not through the force of Section 25-A of the Ordinance but by extending the said provisions to Standing Order 12(3)."
19.In Abdul Sattar's case (supra) it was observed that if a person approaches Labour Court for enforcement' of right under Standing Order 12(3) he has to follow definition given in that Ordinance.
Same was held in Mehmood Ahmed's case (supra). In Muhammad Rashid's case (supra) respondent was employed as security guard in Refinery. It may be pointed out that in terms of provision contained in Section 1(3)(g) of I.R.O., 1969 (same is position in two successor legislations), the I.R.O. is not applicable to security staff of Oil Refineries. Respondent was dismissed from service and he approached Labour Court, Labour Court ordered reinstatement, Labour Appellate Tribunal allowed appeal taking a view that Section 1(3)(g) of the Industrial Relation Ordinance was not applicable. High Court accepted writ petition and remanded the matter to Labour Court. It was taken to the Supreme Court and the Supreme Court observed as under:-- "7. No doubt, Section 25-A of the Industrial Relations Ordinance, 1969 enables a "workman" to seek redress of his grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement but, as is indicated by the definition of "worker" or "workman" in the Industrial Relations Ordinance and Standing Order 12(3) in the Standing Orders Ordinance a person who is aggrieved by termination of his service or removal, retrenchment discharge or dismissal otherwise than in connection with or as a consequence of an 'industrial dispute, can only approach the. Labour Court with his grievance petition under the petition under the provisions of Standing Order 12(3) provided that he is a "workman" within the meaning of the said term as-defined in the Standing Orders Ordinance. The words "he may take action in accordance with the provisions of Section 25-A of the Industrial Relations Ordinance, 1969 (XXIII of 1969) and thereupon the provisions of the said section shall apply as they apply to the redress of an individual grievance" occurring in Standing Order 12(3) only indicate that the provisions of Section 25-A of the Industrial Relations Ordinance have been extended to Standing Order 12(3) only by reference or incorporation. It therefore, follows that right to seek redress has been made available to such workman not through the force of Section 25-A of the Industrial Relations Ordinance but by extending the said provisions to Standing Order 12(3). We are fortified in our view by an earlier judgment of this Court in the case, of Syed Matloob Hassan u. Brooke Bond Pakistan Limited, Lahore (1992 SCM R 227). In this case one of us (Ajmal Mian, J, as he then was) had observed:-- "Whereas, the above clause (3) of Standing Order 12 contemplates that the services of workman shall not be terminated nor shall a workman be removed, retrenched, discharged or dismissed from service, except by an order in writing containing the reason for the action. It further provides that in case ' a workman is aggrieved by the termination of his service or removal, retrenchment, discharge or dismissal he may take action in accordance with the provisions of Section 25-A of the Industrial Relations Ordinance and thereupon the provisions of the said section shall apply as they apply to the redress of an individual grievance. In other words, the above clause (3) of Standing Order 12 incorporates the provisions of Section 25-A of the Industrial Relations Ordinance by reference for the purpose of enabling a workman as defined in clause (i) of Section 2 of the Ordinance to get redress, against termination of his services or removal or retrenchment, discharge or dismissal in violation of above clause (3) of the Standing Order 12."
8. Similar observations have been made in 1998 SCM R 644 (Mustehkum Cement Limited v. Abdul.
Rashid and others) recently decided by this Court. Incidentally, once again one of us (Mamoon Kazi, J.) has delivered the judgment in the said case. It has been observed in the said judgment-- "The provisions of Standing Order. 12(3), therefore, indicate that it allows right to a workman who is aggrieved by termination of his service or removal, retrenchment, discharge or dismissal to seek redress in accordance with , the provisions of Section 25-A of the Ordinance. The words `and thereupon the provisions of the said section shall apply as they apply to the redress of an individual grievance' clearly indicate that for the purpose of redress of such grievance the procedural provisions of Section 25-A have been extended to Standing Order 12(3) and the said provisions shall apply in the same manner as they would apply in case of an individual grievance referred to in the said section. It, therefore, clearly follows that right to seek redress has been made available to such workman, not through the force of Section 25-A of the Ordinance but by extending the said provisions to Standing Order 12(3)."
9. It, is thus, clear that in the present case the respondent had sought redress of his individual grievance by virtue of Standing Order 12(3) and the provisions of Section 25-A have been extended to the said Standing Order only for the purpose of the redress of such grievance. However the provisions of Section 25- A would not apply to the case of such workman through their own for, but by virtue of Standing Order 12(3). Consequently, even if the provisions of the Industrial Relation Ordinance had been excluded in case of persons belonging to security service of an oil refiner,, but as the provisions of Standing Orders Ordinance have not been excluded, such a person could still seek his remedy before the Labour Court for redress of his grievance in case he falls within the definition of "workman" as given in. clause (i) to Section 2 of the said Ordinance. Consequently, the view taken by the High Court, which clearly appears to be in consonance with the said two judgments of this Court, appears to be correct."
20. Munir Hussain Bhatti, advocate v. Federation of Pakistan and another (PLD 2011 SC 407) is also a case in point. 18th Amendment was still under challenge when action taken under 18th amendment was brought under scrutiny and it was observed by the Supreme Court as under:- "60. Before Moving on to the next section of this opinion, we may also address a number of arguments made on the issue of justificiability by the learned Additional Attorney General. He argued, firstly, that the question of justiciability of the decisions of the Committee had yet to be decided by the seventeen- member larger Bench of the Court in the petitions filed to challenge the vires of the 18th Amendment. On this basis, he submitted that this Bench should await the decision of the larger Bench and, in the meanwhile, put the adjudication of these petitions on hold.
The learned Additional Attorney General was of the view that the present petitions were a back- door attempt to challenge the role of the Committee and to undermine such role even before the full Court has had the opportunity of deciding the petitions challenging the 18th Amendment. We have considered these submissions and reiterate that the scope of these petitions is materially different from the scope of the petitions being heard by the larger Bench. We are clear, as stated earlier, that the present petitions assume the validity of the 18th and 19th amendments. The petitioners only seek judicial interpretation of these amendments for the purpose of their challenge to the two aforementioned decisions taken by the Committee. Put simply, while the present petitions seek judicial review of decisions of an executive body; purported to be taken under Article 175A of the Constitution, the petitions before the larger Bench challenge the very authority of Parliament to make the amendments challenged in such petitions. It is, therefore, evidence that any adjudication in these petitions will relate only .to the impugned decisions of the committee and not to the validity of the amendments in the Constitution."
21.Reference may also be made to Security Paper Mills Limited v. Sindh Labour Appellate Tribunal and others (PLD 1988 SC 180) and Security Paper Limited u. Sindh Labour Court No,4 (1981 PLC 898) where it was held that even if Industrial Relation Act, 1969 is not applicable to the Security Paper Mills Limited even then workmen of the organization can seek redressal of their grievance under Standing Order 12(3) from the Labour Court.
22.Another 'point to be considered is that if a dismissed employee could go to the Labour Court by Section 25-A itself independent of Standing Order 12(3) then what was need for making provision in Standing Order 12(3) that he could take his grievance before Labour under Section 25- A. No redundancy can be attributed to the Legislature. Therefore, question to be considered by the Labour Court would be as under:--
(1) Labour Court shall not go into question of the vires or validity of the Industrial Relation Act, 2012 because that matter is being considered by the Full Bench of this Court. Moreover contention is that irrespective whether Act of 2012 is ultra vires or not, grievance petition would be maintainable for right guaranteed under Standing Order 12(3).
(2) Impugned order by which Labour Court returned petitions is set aside and the matter is remanded to the Labour Court to consider following two questions:--
(i) While assuming that the Industrial Relation Act, 2012 is valid whether workman can come to the Labour Court to enforce his right under Standing Order 12(3) even in case of trans, provincial organizations.
(ii) Till such question is finally decided Labour Court shall continue to entertain grievance petitions of workers who approach the Labour Courts with their grievances petitions in respect of right guaranteed under Standing Order 12(3) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.
23. Consequently; this constitutional petition is disposed of in above terms. Office is directed to send a copy of this order to the Chairman, Sindh Labour Appellate Tribunal and to Presiding Officer of all the eight Sindh Labour Courts for necessary compliance.