1. DECISION ' MUHAMMAD KHALID MEHMOOD KHAN, J.--- Through this constitutional petition, petitioners have assailed order dated 24-1-2012 passed by respondent No,1 whereby the contempt proceedings pending before Labour Court No,4, Faisalabad against respondents Nos.2 to 5 have been withdrawn.
2. ' Briefly stated the facts of the case are, the services of petitioners being employees of respondent No,2 were terminated on 1-9-2010 and 16-9-2010. The petitioners filed grievance petition under section 33(8) of Punjab Industrial Relations Act, 2010 (hereinafter referred to as PIRA, 2010) read with Standing Order No,12(3) of the Industrial and Commercial Employment (Standing Orders)
3. Ordinance VI of 1968 (hereinafter referred to as ICESO Ordinance 1968) before Labour Court No,4, Faisalabad. The respondent No,2 filed written statement, learned Labour Court after recording evidence allowed the grievance petition on 22-8-2011. The respondent No,2 filed appeal against order dated 22-8-2011 which is pending disposal before the learned Punjab Labour Appellate Tribunal, Lahore.
4. ' The petitioners filed a contempt petition before the learned Labour Court No,4, Faisalabad under section 33(8) of PIRA, 2010 read with sections 3 and 4 of Contempt of Court Ordinance, 2003 for compliance of order dated 22-8-2011. The learned Labour Court No,4 issued notice to respondents; the respondent No,2 instead of defending the contempt petition filed an application before respondent No,1 the Bench of NIRC at Lahore for withdrawal of the contempt petition pending before Labour Court No,4 Faisalabad. The respondent No,1 through the impugned order dated 24-1- 2012 withdrew the contempt proceedings pending before learned Labour Court No,4 for assigning the same to National Industrial Relations Commission Bench, Lahore. The petitioners thus assailed the impugned order dated .24-1-2012 claiming that the respondent No,1 has no jurisdiction to pass the impugned order as the competent court of law has already taken cognizance of the matter and dispute between the parties stand concluded when the learned Labour Court passed order dated 22-8-2011 whereby the petitioners grievance petition was allowed.
5. ' Learned counsel for petitioners submits that under section 57(2)(b) of Industrial Relations Act, 2012 (hereinafter referred to as IRA, 2012), the respondent No,1 can only withdraw the petition or proceeding from Labour Court where the dispute pertains to unfair labour practice. The parties are in appeal before the Punjab Labour Appellate Tribunal which is a proper forum for the redressal of grievance of both the parties. Learned counsel finally adds that the impugned order is without jurisdiction. Learned counsel for respondents submits that the petitioners in ' Their grievance petition has alleged the act of respondent No,2 as unfair labour practice. Learned counsel submits that under IRA, 2012 the National Industrial Relations Commission (hereinafter referred to as NIRC) enjoys the jurisdiction for redressed of individual grievance in relation to Trans-Provincial Establishments, the ouster of jurisdiction of Labour Court and the Labour Appellate Tribunal is complete and absolute. Further under section 87 of IRA, 2012 the provisions of IRA, 2012/IRO, 2011 had the overriding effect over all existing laws. Learned counsel submits that the judgment of learned Labour Court dated 22-8-2011. Is without any jurisdiction and is not an executable order and as such impugned order is perfectly in accordance with law. Learned counsel adds that the Labour Court under PIRA, 2010 has no jurisdiction to entertain contempt petition against respondent No,2 as the respondent No,2 is maintaining trans-provincial establishment. Learned counsel relied on Air League of PIAC Employees through President v. Federation of Pakistan M/O Labour and Manpower Division Islamabad and others (2011 SCMR 1254) and unreported judgment of this Court passed in W.P.No,24691/2011 titled Ch. Basharat Ali v. Federation of Pakistan and otheRs, Heard, record perused.
6. ' The filing of grievance petition under section 33(8) of PIRA, 2010, its decision after recording evidence and hearing the parties and pendency of appeal before Punjab Labour Appellate Tribunal is admitted fact between the parties. The controversy erupted when the petitioners filed contempt petition under section 33(8) of PIRA, 2010 read with sections 3 and 4 of Contempt of Court Ordinance, 2003 before Labour Court constituted under PIRA, 2010.
7. ' The respondents Nos.2 to 5 filed application under section 57(2)(b) of Industrial Relations Ordinance, 2011 (hereinafter referred to as IRO, 2011) for withdrawal of contempt petition filed by petitioner before NIRC, claiming that under section 57(2)(b) of IRO, 2011 NIRC has the exclusive jurisdiction to entertain and decide the dispute between the employer and the workman where the grievance is related to the allegation of unfair labour practice. The IRO 2011 has now been repealed and IRA, 2012 has been promulgated. The proceedings pending under IRO, 2011 is saved under section 88 of the IRA, 2012.
8. ' The argument of learned counsel for petitioners is that the petitioners' grievance was individual grievance and Labour Court alone has the power to adjudicate upon the grievance of individual less the unfair labour practice, hence the respondent No,1 had no jurisdiction Under section 57(2)(b) of IRO, 2011, now IRA, 2012 to withdraw the proceedings pending before Labour Court qua individual grievance of the workman.
11. Syed Naeem Bokhari, Advocate/learned counsel for respondent No,2 vehemently argued that the petitioners are the members of trans-provincial establishment and as such the only jurisdiction to redress the grievance of petitioners is with the NIRC established under IRA, 2011 and Labour Court has no jurisdiction to take cognizance of the grievance of employee of Trans- Provincial Establishment.
12. It is an admitted fact that Pakistan Tele-Communication Corporation Limited is a trans- provincial establishment as it is maintaining its undertaking in all the four provinces of Pakistan including Islamabad Capital Territory, but point requires resolution whether under IRA, 2012 the NIRC has the general jurisdiction on all dispute between the employer and workman of trans- provincial establishment or its jurisdiction is restricted to the extent of grievance arising out of unfair labour practice. After 18th amendment of the Constitution of the Islamic Republic of Pakistan, 1973, the concurrent legislative list stand abolished and the items referred in the said list became the legislative domain of provinces including the legislation on labour subject. The Province of Punjab has enacted Act known as Punjab Industrial Relations Act, 2010 (PIRA, 2010). The Preamble of PIRA, 2010 shows that it regulates the formation of trade unions and trade union activities, relations between employers and workmen and the avoidance and settlement of any differences or disputes arising between them and ancillary matteRs, In the definitions clause, section 3 of PIRA, 2010 the Act applies to all persons employed in any establishment or industry excluding as detailed in clauses (a) to (d).
9. Establishment is defined in section 2(ix) of PIRA, 2010 which is.Read as under:--- "establishment" means any office, firm, factory, society, undertaking, company, shop, premises or enterprise in the Punjab, which employs workmen directly or through a contractor for the purpose of carrying on any business or industry and includes all its departments and branches, whether situated in the same place or in different places having a common balance sheet and except in section 25 includes a collective bargaining unit, if any, constituted in any establishment or group of establishments."
10. Group of establishment is defined in section 2(xii) of PIRA, 2010 which is read as under:--- "group of establishment" means establishments belonging to the same employer and the same industry."
11. Worker is defined in section 2(xxxi) of PIRA, 2010 which is read as under:--- worker" and "workman" mean a person not falling within the definition of employer who is employed (including employment as a supervisor or as an apprentice) in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment be express or implied, and, for the purpose of any proceedings under the Act in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid-off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay-off or removal has led to that dispute but does not include any person who is employed mainly' in managerial or administrative capacity.. '
12. ' The bare reading of the preamble and the sections referred to above will show that PIRA, 2010 is applicable in the Province of Punjab only and it pertain to jurisdictional extent with those industries which are working exclusively in the Province of Punjab and are not maintaining any trans- provincial establishment character or status. IRA, 2012' after 18th amendment of the Constitution of the Islamic Republic of Pakistan, 1973 has been promulgated for regulating the affairs of labour disputes pertaining to the establishment which has its establishment in four provinces and the Islamabad Capital Territory. The preamble of IRA, 2012 is read as under:- "An Act to consolidate and rationalize the law relating to formation of trade unions, and improvement of relations between employers and workmen in the Islamabad Capital Territory and in trans provincial establishments and industry. Whereas the Constitution of the Islamic Republic of Pakistan recognizes the freedom of association as a fundamental right of the citizens.
13. And whereas the Islamic Republic of Pakistan has ratified ILO convention No,87 on Freedom of Association and Convention No,98 on Right to Organise and Collective Bargaining;And whereas it is expedient to consolidate and rationalize the law in Islamabad Capital Territory and at trans- provincial level, relating to formation of trade unions and federations of trade unions, determining the collective bargaining agents, regulation of relations between employers and workers, the avoidance and settlement of any difference or disputes arising between them or matters connected therewith and ancillary thereto; "
14. Section 1(3) of IRA, 2012 provides as under:--- "(3) 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, but shall not apply to any person employed:--,"
15. The definition of commission is provided in section 2(xi) of IRA, 2012. The unfair labour practice on the part of employer is defined in section 31 and unfair labour practice on the part of workman is defined in section 32 of IRA, 2012. The functions of commission are provided in section 54 of IRA, 2012. Section 54(i) of IRA, 2012 is read as under:--- "(i) to exercise exclusive jurisdiction over the establishment or group of establishments situated in the Islamabad Capital Territory and trans-provincial; "
16. The individual grievances which can be taken to cognizance by the Commission are provided in section 54 (h) and in section 33 of IRA, 2012. The procedure for dealing the individual grievances is provided in section 33 of IRA, 2012. Section 33 of IRA, 2012 provides the procedure for redressed of individual grievances of worker. The provisions of section 54 of IRA, 2012 are read as under:--- "(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; to register trade unions and industry-wise trade unions of an establishment or group of establishments in the Islamabad Capital Territory and trans-provincial, and federations of such trade unions; to determine the collective bargaining agents amongst trade unions and industry-wise trade unions in the Islamabad Capita Territory and trans provincial and federations of such trade unions. To deal with cases of unfair labor practices specified in sections 31 and 32 on the part of employers, workers, trade unions of either of them or persons acting on behalf of any of them, whether committed individually or collectively, in ,the manner laid down under section 33 or subsection (9) section 33 or in such other way as may be prescribed, and to take, in such manner as may be prescribed by regulations under section 66, measures calculated to prevent an employer or workman from committing an unfair labour practice; to exercise exclusive jurisdiction over the establishment or group of establishments situated in the Islamabad Capital Territory and trans-provincial; and (i)
17. From the perusal of above provisions of law it is clear that provisions of IRA, 2012 are applicable where the establishment has trans-provincial character/status. The provisions of PIRA, 2010 are applicable only on those establishments which are functioning or doing business within the province of Punjab only.
18. The jurisdiction of NIRC under section 54(e) and (i) comes into action only where there is allegation of unfair labour practice on the part of employer or employee as defined in sections 31 and 32 of IRA, 2012. The word "trans-provincial" denotes that the employer establishment is maintaining its establishment in more than one province of Pakistan and in case the establishments are maintaining their business or establishment in more than one, province, the provisions of PIRA, 2010 will not be applicable.
19. ' The preamble of IRA, 2012 is clear which provides that IRA, 2012 will be applicable only in Islamabad Capital Territory and in Trans-Provincial Establishment and industry. The application of said act is provided in section 1(3) of IRA, 2012 which shows that it shall be applied to all persons employed in any establishment or industry in Islamabad Capital Territory or carrying on business in more than one Province. The cumulative study of above said provisions will show that where establishment or industry exists in more than one provinces of Pakistan, the IRA, 2012 will be applicable provided the grievance between the parties pertains' to unfair labour practice either on the part of employer or the employee. Where the grievance is in violation of section 33(8) of PIRA, 2010 read with Standing Order 12(3) of the Industrial and Commercial Employment (Standing Order)/Ordinance, 1968, the grievance will be within the cognizance of Labour Court established under IRA, 2012 as defined in section 2(xx) of IRA, 2012.
20. The definition of Labour Court given in IRA, 2012 solves the enigma; this provides that Labour Court means a Labour Court established in a province meaning thereby where the grievance of employee or employer is in exclusive of unfair labour practice, the Labour Court of respective Province will enjoy the exclusive jurisdiction to entertain and decide the matter in dispute irrespective of fact that employer has its establishment in four Provinces of Pakistan.
21. ' The argument of learned counsel for respondent is that trans-provincial means that every grievance between the parties will be entertain able and justiciable by NIRC is thus without any substance. The jurisdiction of commission is restricted to the functions detailed in sections 53 and, 54 of IRA, 2012. Section 53 of IRA, 2012 provides the constitution of National Industrial Relations Commission and section 54 provides the jurisdiction/ function of the Commission. The word used in section 54(i) of IRA, 2012 is "to exercise exclusive jurisdiction over the establishment or group of establishments situated in the Islamabad Capital Territory and trans-provincial".
22. Section 54(e)(i)(j) read with section 57(2)(b) of IRA, 2012 clarifies the ambiguity. Section 54(e)(i)(j) and section 57(2)(b) of IRA, 2012 provide as under:--- "Section 54 (e) (i) (j) of IRA, 2012:
(e) to deal with cases of unfair labour practices specified in sections 31 and 32 on the part of employers, workers, trade unions of either of them or persons acting on behalf of any of them, Whether committed individually or collectively, in the manner laid down under section 33 or subsection (9) section 33 or in such other way as may be prescribed, and to take, in such manner as may be prescribed by regulations under section 66, measures calculated to prevent an employer or workman from committing an unfair labour practice;
(i) to exercise exclusive jurisdiction over the establishment or group of establishments situated in the Islamabad Capital Territory and trans-provincial; and such other powers and functions as the Government may, by notification in the official Gazette, assign to it from time to time. Section 57 (2)
(b) of IRA, 2012:
(b) Withdrawal from a Labour Court of Province any application, proceedings or appeal relating to unfair labour practice, which fall within jurisdiction of the Commission; and"
23. The words used in the above said section are relating to unfair labour practice which falls within the jurisdiction of the Commission and it is an admitted fact that till today the Federal Government has not issued any Notification for assigning any other function under section 54(j) of IRA, 2012 and as such the said provision could not be dismissed or opined. There is no antbiguity in the provisions of section 57(2)(b) of IRO, 201 which states that where the dispute has arisen out of unfair labour practice, the jurisdiction of NIRC is absolute but where there is no allegation of unfair labour practice, the jurisdiction will be triable by the Labour Court where the cause of action arisen. The Court has been informed that there is no Labour Court functioning in Islamabad territory and the aggrieved parties of individual grievance are unable to get their grievance redressed and vacuum will be created if this Court comes to the conclusion that Labour Court of the Province has the exclusive jurisdiction to adjudicate the grievance of aggrieved party where there is no allegation of unfair Labour practice. The definition of Labour Court provided in section 2(xx) of IRA, 2012 shows that Labour Court means established in a province. The above said apprehension is not correct.
24. Under IRA, 2012 the Labour Court has been defined in section 2(xx), which is read as under:--- "(xx) "Labour Court" means a Labour Court established in a province. "
25. The above said provision of IRA is clear that any dispute between the employer and member of that establishment which operates in Islamabad Capital Territory will be triable by the Labour Court established in Province; hence the Labour Court at Rawalpindi will hear the grievance of the concerned parties.
26. In the present case, the petitioners have filed grievance petition under section 33(8) of PIRA, 2010 before the Labour Court, the respondents appeared before the Labour Court and had not raised any objection about the jurisdiction of Labour Court. The Labour Court No,4 after recording the evidence decided the grievance petition against the respondent No,2. The order of Labour Court No,4 is an appealable order under law, the respondent No,2 has availed the remedy of appeal before the Punjab Labour Appellate Tribunal.
27. Learned counsel for respondent has pointed out para 9 of the grievance petition and submits that the petitioners have specifically claimed that the petitioners services have been terminated due to unfair labour practice and as such the order passed by the Labour Court is without lawful authority and is coram non judice. This argument of learned counsel for respondent is bound to fail for the simple reason that the respondent while replying the grievance petition has specifically denied the allegation that the termination of petitioners services is due to unfair labour practice. The para 9 of the grievance petition and its reply is reproduced as under:--- "Grievance petition Reply
9. That the impugned orders of termination are mala fide in law and the petitioners have been victimized on account of their lawful trade union activities as at the time of termination a charter of Demands/industrial dispute were pending. The impugned orders are Therefore, hit by section 61(2) of Punjab I.R.A., 2010.
9. Not admitted for being false and frivolous. However, the petitioner's union is not the CBA and hence carries no significance. On the other hand respondents acted under law, within jurisdiction and have absolutely no mala fide or ulterior motives and no such mala fide is proved on record."
37. The learned Labour Court No,4 after hearing the parties and recording evidence decided the above said issue. However, the respondent has the right to agitate the said issue before learned Punjab Labour Appellate Tribunal and I may refrain myself to comment on this Issue lest it may cause loss to either of the parties before the learned Punjab Labour Appellate Tribunal, so I leave it open for both the parties to argue the said objection before the learned Punjab Labour Appellate Tribunal where both the parties are in appeal.
28. It is a settled principle of law that once the objection of jurisdiction is not raised in the court of first instance, it cannot be allowed to raise subsequently especially in constitutional jurisdiction of this Court where the issue is not about the legality or illegality of the grievance of the petitioners but where the issue is about the application of IRA, 2012 or PIRA, 2010. Reliance can be placed on Sarfraz v. Muhammad Aslam Khan and another (2001 SCM R 1062).
29. Learned counsel for respondent No,1 thus was not justified to withdraw the contempt proceedings pending before the learned Labour Court No,4, Faisalabad as the matter does not pertain to unfair labour practice. In view of above, the petition is allowed and the impugned order is declared without lawful authority. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.