ABDUL GHIAS NOUSHERWANI (MEMBER).--- The instant appeal has been filed against the judgment passed by District and Session Judge Presiding Officer one Balochistan Quetta dated 31-12-2012 whereas the application filed by the appellant was dismissed.
2The brief facts of the appeal are that the appellant was compulsory retired on the charge of wilful absence without prior approval of the authority. Apart from this allegation other allegations were also levelled against him but the subject-matter of the instant appeal is as stated that he was compulsory retired on the charge of wilful absence.
3. On the first round of litigation the application was rejected/ dismissed by the learned Labour Court by means of order/judgment dated 18-12-2008 with the following observations:--- "Thus consequently in the light of foregoing discussions, citation, record and plane discussion on issues, I am of the opinion that the under reference application under section 46 of the Industrial Relation Ordinance, 2002 filed by the applicant Mr. Mehmood Ahmed being immature is dismissed herewith."
The Appellate Tribunal on appeal remanded the matter to Learned Labour Court for rewriting of the judgment with following directions by means of order dated 9-12-2010:--- "So being and the present case either learned Presiding Officer had to declare, he had no jurisdiction in the matter, on the grievance, that matter is about unfair labour practice and competent forum already on this point had taken jurisdiction or second, to declare matter is res- subjudice then in such circumstances to restrain or restrict himself to discuss the matter on merits.
Prima facie it appears that judgment has not been written properly."
4. After remand the learned Presiding Officer did not comply with the remand order and concluded as following dated 28-2-2011:--- "Hence it is concluded that this court regrets to follow the directions of the Appellate Tribunal of rewriting of the judgment dated 18-12-2008 or reviewing its own judgment whereas as mentioned hereinbefore it is for the Appellate Court to decide the matter finally either by confirming, set asiding or modifying the decision of this court with this the under reference case Mehmood Ahmed v. Messrs Habib Bank Limited remanded to this court is disposed of here with."
5. Again in appeal the matter was remanded for compliance of earlier remand order dated 9-12- 2010 with the following observations:--- "In remand order dated 9-12-2010 for rewriting of judgment such defects mentioned therein but the then Learned Presiding Officer instead of comply of remand order unreasonable remarks/directions introduced about Appellate Authority which are not only unreasonable abuse of process but also without jurisdiction/justification. In view of such legal and factual position of the case when remand order 9-12-2010 is in field which is not complied with this Forum has no option except to again remanded the matter to learned District and Session Judge first Labour Court Quetta for rewriting of the judgment after hearing the parties in compliance of remand order dated 9-12-2010 before a reference shall be made for Superior Authorities with regard to such unreasonable remarks of the then Presiding Officers of 1st Labour Court Quetta. Thus appeal is disposed of accordingly."
6. After 2nd remand the learned Presiding Officer deeply studied the whole case file along with documents, statement of witnesses of the parties and the citations submitted from both sides came to the conclusion that prior to touching the merits of the case it was/is necessary to discuss the position of the petitioner whether he comes within the definition of worker/workman as provided under Industrial Relation Ordinance 23 of 1969 section 2? After referring many citations dismissed the application with the following remarks:- "Keeping in view the reliance as mentioned and pleadings of the case, which the petitioner do has mentioned in the petition that he is a Grade-II Officer of the respondent bank, while it is proved that he does not come within the definition of worker/workman as defined in the Labour laws, so that, he is not entitled having no right to claim any relief from this Honorable Court, thus the petition is dismissed as no order as to cost. However the petitioner is at liberty to file a fresh case before the competent forum having jurisdiction"
The Learned counsel for appellant at the very outset contended that the point of jurisdiction with regard to worker/workman has already being decided by the Labour Court by means of order dated 31-5-2008 while disposed of legal objections of the respondent-bank. Against that order no appeal and revision has been filed and the learned Labour Court as well as this Tribunal has no review power to its order. Therefore the above said order is finally in field. On the other hand the learned counsel for respondent submitted that the above said order has been merged in final order which for two times had been set aside. Therefore such order is not in field.
' From perusal of record it appears that on 28-5-2008 arguments on the issue of jurisdiction of the Court has been heard and such legal objections has been raised by respondent bank. However order on legal objection has been announced on 31-5-2008 with the following conclusion, "On 28-5-2008, arguments on issue of jurisdiction heard. In the light of arguments it was observed that the applicant was Grade-II Officer and his status falls in the category of 'worker' or 'workman' which means any person employed in any Industrial Commercial Establishment to do any skilled or unskilled or clerical work for hire or reward. Such difference has been elaborately explained by the Supreme Court of Pakistan in the case of Abdul Razaq v. Ihsan Sons (1992 PLC 424). For further elucidation, it was distinct through judgment of Balochistan High Court dated 10-11-2003 Pakistan Synthetic v. Muhammad Amin Ghazi. In another judgment of the Lahore High Court holds that "the Grade-II Officer besides that he has had power of attorney declared as a "workman". The above narrated citations, which were specified by the counsel for applicant in his written arguments, after deep perusal of the same, it was also observed that the respondent/bank is a private institute, therefore, this Court has fully jurisdiction to try its matter"
With regard to review power of Labour Court the learned counsel for appellant referred citation reported in 2010 PLC 1 where in hand:--- "5.23-Industrial Relation Act (IV of 2008), S.54--Constitution of Pakistan (1973), Article 199--- Constitutional petition--Review---Power of ' Commissioner to review its own order--Scope--- Commissioner Workmen's Compensation had no power to review its own order---Power of review was not available, unless it had been specifically confirmed by law---Power of review was not available to Labour Court---Power of Labour Court under Section 54 of Industrial Relations Act, 2008 were more extensive and wide compared with power of Commissioner Workmen's Compensation---If the Labor Court with its wider amplitude of powers, had no power of review, how could Commissioner Workmen's Compensation be asked to review its order---Constitutional petition was dismissed."
' Admittedly against order dated 31-5-2008 no appeal/revision petition has been filed to challenge such order neither the learned Presiding Officer discuss the same order in order impugned.
However it is settled principle of law that status of worker/workman can be determined by the nature of work and not by the designation. From perusal of evidence produced by the parties nothing came on record that he was an officer supervising some staff and having any power of attorney to deal with the matter of respondent bank. Meaning thereby the appellant/applicant has no power of hire and fire. The learned counsel for respondent in support of his contention referred a judgment of honorable Supreme Court of Pakistan reported in 2011 SCM R 1475. The facts and circumstances of referred authority are quite different from that of matter in hand because in referred authority the respondent was a Grade-II Officer but posted as branch manager whereas in the case in hand nothing came on record that the appellant/applicant was posted as branch manager.
9. In view of above legal and factual position of the matter firstly the Labour Court as well as Labour Appellate Tribunal has no power of review of its order. Therefore the order 31-5-2008 gain its finality which has not been challenged. Moreover as mentioned herein above that in the light of evidence and record nowhere it is mentioned that applicant/ appellant was posted as branch manager, any power' of attorney granted by the bank and he was supervising some of staff of the bank. Therefore he was rightly earlier declared a worker by the Learned Labour Court by means of order dated 31- 5-2008. Perhaps the above said order has been overlooked by the Presiding Officer which has not been discussed in order impugned.
10. The learned counsel for respondent also challenged the jurisdiction of Labour Court as well as this Tribunal in view of. I.R.O. 2011 and I.R.A., 2012 . Submitted that the respondent-bank has its branches/business in the entire country therefore the jurisdiction of NIRC is competent to entertain such matteRs, Further contended that the appellant/applicant also approached the NIRC with regard to similar prayers and similar cause of action.
' Therefore the instant application/appeal is not maintainable before Labour Court as well as before this Tribunal. To supplement his second contention he referred a judgment reported in 2005 PLC 424 wherein held:--- "It is settled principle of law that where two remedies are available to a person he has option to choose either of the two remedies. ' However once he exercises such option he could not resort to other remedy. As precondition for application of such bar is that two remedies should be available before fora having jurisdiction to adjudicate over the matter. A relief sought before a Tribunal not having jurisdiction cannot bar the remedy available before competent court."
' On the other hand the learned counsel for appellant/applicant stated that the applicant/appellant approached the NIRC on 4-4-2008 with regard to complaint of unfair Labour practice under section 63 of I.R.O., 2002 along with the application for suspension of retirement order. In support of his contention he referred a judgment reported in 2006 TD (Labour) 471 of honorable Supreme Court of Pakistan wherein held:--- "Ss. 25A, 22A. Jurisdiction of Labour Court under section 25A of NIRC can intervene only if unfair Labour practice is established while Labour court can examines vires of termination even no unfair Labour practice is involved. Resort to NIRC against unfair Labour practice would not oust jurisdiction of Labour court Qua grievance petition challenging interimination order."
' Keeping in view the power of NIRC as well as Labour court's the above cited judgment indicates two views of law i,e, firstly separated the jurisdiction of both forum indicating that the jurisdiction of NIRC can be invoked where unfair Labour practice is involved whereas the Jurisdiction of Labour Court can be approached even where no unfair labour practice is involved. Secondly it is also mentioned that if one approach the NIRC for unfair Labour practice he also has the right to approach the Labour court against his grievance. The authority referred by respondent i,e, 2005 PLC 424 is judgment of one honorable Judge of Karachi High Court whereas citation referred by learned counsel for appellant is a recent judgment reported in 2006 authored by two honorable Judges of Supreme Court of Pakistan. Therefore in view of above citation the objection of learned counsel for respondent challenging the jurisdiction of Labour Court as well as Tribunal is not sustainable, accordingly the same is overruled.
11. Now coming to the objection of learned counsel for respondent with regard to I.R.O., 2011 and I.R.A., 2012 submitted that after promulgation of said Act Labour Court and Labour Appellate Tribunal have no jurisdiction with regard to matter having their establishment in more than one province. This factor needs to see the background of legislature with regard to Labour welfare.
Initially the matters relating to welfare of Labour and trade union were mentioned in concurrent legislative list at item numbers 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 I.R.A., 1969 which was repealed by I.R.O., 2002 and same was repealed by I.R.A., 2008. Section 87(3) of I.R.A., 2008 provided that the said Act shall unless repealed earlier stand repealed on 30-4-2010. Hence it was a temporary legislation which was to die on 30-4-2010 automatically if it was not extended by legislative measure before the repeal of I.R.A., 2008. On 20- 4-2010, 18th Constitutional Amendment was passed whereby the concurrent legislative list was abolished and the matter relating to Labour and trade unions were transferred to legislative competence of Provincial Government. Meaning thereby that the matter relating to Labour industrial dispute and trade union came under the legislative (sic) of respective province. After 18th Constitution Amendment, the Government of Balochistan issued B.I.R.A., 2010 which was repealed by B.I.R.A., 2010. So under B.I.R.A.. 2010 the Labour courts as well as Labour Appellate Tribunal were created and working under the same law. The above objection needs further consideration by looking the various applicable sections of I.R.A., 2012. In. This regard section 3 of I.R.A., 2012 states:--- "It shall apply to all persons employed in any establishment or industry in the Islamabad Capital Territory or carrying its businesses in more than one Province."
Whereas B.I.R.A., 2010 in section 2 states:--- "It extends to the whole of Balochistan except tribal areas."
' Likewise section 4 states:--- "It shall apply to all persons employed in any establishment or industry to the extent of Balochistan."
' The matter in hand pertains to an industrial dispute situated in Balochistan Province. However the relevant section of I.R.A., 2012 is being discussed in the following manner.
12. Jointly reading of section 3 of I.R.A., 2012 read with section 34(2), section 54(a) and explanation of section 57 conclusion can be drawn that the jurisdiction of NIRC is confined to the matters effecting the affairs of establishment and employs within country or within the provinces where the employer as its own establishments more than one Province. Furthermore trade units or CBU representing such employees having their membership in more than one province more over unfair Labour practice is the subject-matter of NIRC. Further section 34(2) of I.R.A., 2012 is reproduced as under:--- "Notwithstanding anything contain 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 establishment represented by that Federation and a decision of the Commission shall be binding on all such employers and workeRs,"
' The section quoted above is enough with regard to jurisdiction of NIRC. Meaning thereby the matter of industrial dispute affecting all employers or workers of the establishment in more than one province, for further clarification it means any industrial dispute which equally exists in more than one province in different establishment come under the jurisdictionof NIRC. Furthermore if the trade union or Federation representing such employees in cases where establishment is extended in more than one Provinces. The case in hand neither an industrial dispute affecting all employers or workers nor represented by a Federation.
13. Likewise section 54(a) of I.R.A., 2012 defines as under:- "(a) to adjudicate and determine any industrial dispute in the Islamabad capital territory and trans-provincial to which a trade union or a Federation of such trade union 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 Government, of national importance and referred to it by that Government"
' The section 54(a) of I.R.A., 2012 further clarified the jurisdiction of NIRC to the industrial dispute in the Islamabad capital territory and trans-provincial subject to a trade union or a Federation of such trade unions as a party but ousts the jurisdiction of NIRC with purely matters of local nature.
Again at the cost of repetition that the matter in hand relates to an individual pertaining to the termination of his services and admittedly it is a matter of purely local nature.
14. The explanation of section 57 further clarifies the jurisdiction of NIRC in the following manner:--- "Explanation--- the expressions "industry wise trade unions" and "Federation of such trade unions" referred to a trade union membership of which extends to establishments in more than one province and a Federation of trade union whose membership extent to registered trade union in more than one provinces."
In view of above definition the jurisdiction of NIRC is confined with industries wise trade unions and Federation of which membership extends to establishment in more than one province. Keeping in view the above definition the case in hand does not fall within the jurisdiction of NIRC. Therefore such objection raised by learned counsel for respondent is not sustainable in the eye of law.
15. Even otherwise the I.R.A., 2012 came in field in the year 2011-2012 but this matter was already pending/adjudicating since 2008. The above said law has no retrospective effect which even otherwise protected under sections 86 and 87 of B.I.R.A., 2010
16. The provision of National Industrial Commission has been provided in B.I.R.A., 2010 under section 25 to section 31 but still the same has not come in existence. Therefore the same cannot be discussed. However the arguments of learned counsel for respondent are contradictory to the provision of I.R.A., 2012 and B.I.R.A., 2010 with regard to section 25 on word.
17. The legal objections of learned counsel for respondent has been discussed in the light of prevailing law and citations of superior courts now the case remains to be decided on merit. Law requires that the case be remanded to trial court for a decision on merit but remand of the matter will be unnecessary for the reason that entire record and evidence produced by the parties are available and discussed by the learned counsel for the parties during arguments. Therefore I proceed with merit of the matter.
18. Now coming on merit of the case the appellant/applicant was retired compulsory with the charge of wilful absence from duty. The learned counsel for appellant/applicant contended that the respondent allowed the application for leave verbally and in this regard they produced AW-1 Abdullah Jan Marri and thereafter he again applied for extension of leave and no intimation received by the applicant/appellant of rejection of his leave application. As soon as he received information he joined his duty. On other hand the learned counsel for respondent contended that the sanctioning of leave is provided under Staff Services Rules of Habib Bank Limited wherein verbal leave is not authorized. However in my humble opinion in all industrial disputes the rules indicated in the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 are applicable. In section 8(2) the method of granting leave has been provided, that a workman who desires to obtain leave of absence shall apply to the employer who shall issue orders on the application within a week of its submission or two days prior to the commencement of the leave applied for, whichever is earlier, provided that if the leave applied for is to commenced on the date of the application or within three days thereof, the order shall be given on the same day. If the leave asked for is granted a leave pass shall be issued to the workman. If the leave is refused or postponed the effect of such postponement or refusal and the reasons therefore shall be recorded in writing in a register to be maintained for the purpose and if the workman so desires a copy of the entry in the register shall be supplied to him. If the workman after proceeding on leave desires an extension thereof shall apply to the employer who shall send a written reply either granting or refusing extension of leave to the workman. If his address is available and such reply likely to reach him before the expiry of the leave originally granted to him.
19. According to appellant in his affidavit at Para No,5 stated that he availed legal proceedings as a General Secretary whereof he was hit by the bank in proceeding under unconstitutional manner.
Further stated that on 3-9-2007 he applied for leave. The bank officer verbally granted leave. In this respect the available record reveals that leave application form appeared at page No, 146 of the record is a request for grant of leave for six days with effect from 3-9-2007 onward for the purpose of "association affairs". Particular of leave has been mentioned but neither the leave was granted nor refused. The same leave application appeared at page No, 147 of the record wherein mentioned "cannot be allowed" but no signatures are available of forwarding authority or sanctioning authority. The learned counsel for appellant/applicant submitted that the leave was refused behind the applicant and malafiedly in back dates. The reason for granting of leave was "association affairs" which have been confirmed in the affidavit of appellant/applicant but from entire available record nothing appeared with regard to association and the portfolio of the General Secretary ship of applicant. The plea of applicant/appellant is contradictory which cannot be believed that he was victimized by the employer on legal union activities. Further the leave mattered as described under section 8(2) of Standing Order Ordinance has not availed properly and violated the said rule. Therefore on this score alone the applicant/appellant is not entitled for relief claimed.
20. The show-cause notice, notice for enquiry and appointment of enquiry officer has been issued properly. Though the proceedings of enquiry paper are not available on record but in the light of section 8(2) of Standing Order Ordinance the applicant/appellant remained absent from 3-9-2007 onward unauthorized. Therefore on merits the appeal has no force which is accordingly dismissed with no order as to cost. The copy of order along with original record of trial Court be sent to trial Court. Case after completion is consigned to record.