' ZAFARULLAH KHAN KHAKWANI, J. --- This Constitutional Petition is directed against the order dated 16.12.2013 passed by the learned Punjab Labour Court No. 8, Bahawalpur whereby Grievance Petition of respondent No. 2 was accepted and he was directed to be re-instated into service.
2. Brief but relevant facts for adjudication of this case are that Riaz Ahmed, respondent No. 2 was employed by the petitioner/Combined Military Hospital, Bahawalpur as Sweeper on 26.5.2001. Later on he was redesignated/adjusted by the petitioner against the post of Mali on 23.3.2008. It so happened that respondent No. 2 absented from duty and as such his services were terminated statedly on 10.11.2012/18.4.2013. He filed Grievance Petition under the Punjab Industrial Relations Act, 2010 (hereinafter to be called the PIRA, 2010) before the Punjab Labour Court No. 8, Bahawalpur.
Said petition was entertained and notice was issued to the respondent i.e. Combined Military.
Hospital, Bahawalpur/petitioner herein. Order-sheet of learned Labour Court evinces that the respondent (petitioner herein) refused to accept notice and, therefore, was proceeded against ex parte. After hearing learned counsel for the petitioner, the learned Labour Court accepted the grievance petition and resultantly, reinstated the respondent into service as stated above. Hence 'this petition.
3. At the very outset learned counsel for the petitioner, on legal plane, forcefully objected to the competence of the proceedings before the Punjab Labour Court No. 8, Bahawalpur by arguing that the petitioner/Combined Military Hospital, Bahawalpur is one of the base hospitals of Pakistan Armed Forces situated in various Cantonments throughout the country, therefore, in view of Section 1(2) of the PIRA, 2010, the Punjab Labour Court No. 8, Bahawalpur has no jurisdiction to entertain the matters relating to the petitioner. He supplemented his contention by arguing that the Combined Military Hospitals are under the direct control of Pakistan Army Medical Corps and thus do not fall within the definition of 'Industry' or `Establishment' so as to bring the matter under the jurisdiction of Punjab Labour Court as defined in Section 1(3) of the PIRA, 2010 therefore the impugned order is passed without jurisdiction. He also argued that the petitioner-hospital is governed and is under the Administrative Control of the Pakistan Army and is thus excluded from the operation of the PIRA, 2010 as provided in clause (a) of sub-section (3) of Section 1, so proceedings before the learned Punjab Labour Court No. 8, Bahawalpur were corum non judice. On factual plane, learned counsel for the petitioner drew attention of the Court to the personal record of the respondent by contending that the respondent was a habitual offender and his personal record would show that he was not serious in doing his job who not only used to remain absent from duty but was also found involved in theft of goods etc. And as such was issued innumerable show-cause notices/warnings as per law but he did not mend himself and thus the petitioner was right to terminate services of the respondent. Further contends that right of departmental appeal was available to the respondent against the order of his termination from service as such Grievance Petition was not competent and that in any case the respondent was terminated from service after fulfilling all formalities as such the impugned order was not tenable in the eyes of law.
4. Conversely, to meet with preliminary objection of learned counsel for the petitioner, learned counsel for respondent No. 2 vehemently contended that the respondent was not an army personal rather he was a civil employee appointed as Sweeper and then adjusted as Mali and thus was a workman within the definition of Punjab Industrial Relations Act, 2010, so the Punjab Labour Court No. 8, Bahawalpur was fully competent to take cognizance of the matter and thus the grievance petition was rightly entertained by respondent No.
1. While defending the impugned order dated 16.12.2013 learned counsel states that respondent No. 1 passed a well speaking order which is full of reasoning. Learned counsel further argued that the respondent was condemned unheard; no show-cause notice of any kind was issued to him and he was terminated from service through verbal order passed by the petitioner which was not backed by any law and thus the same was rightly set aside by the learned Punjab Labour Court, Bahawalpur. Lastly argued that the petitioner has an alternative remedy of filing 'an appeal before the Punjab Labour Appellate Tribunal under Section 47(3) of the Act as such this Constitutional petition was notmaintainable. Addressing to the last limb of the arguments of learned counsel for the respondent, learned counsel for the petitioner has submitted that it is case of the petitioner that the Punjab Industrial Relations Act, 2010 is not applicable to their case, as such there was no occasion to file an appeal before the learned Labour Appellate Tribunal which is creation of the Act itself as such this Constitutional Petition has been filed.
5. Arguments pro and contra have been heard and record has been perused.
6. Instead of entering into the realm of factual controversy the pivotal point to be resolved first is whether any civil employee of Combined Military Hospital is a workman within the definition of Clause (xxxi) of Section 2 of the Punjab Industrial Relations Act, 2010 so as to bring provisions of the said Act into operation; whether provisions of Punjab Industrial Relations Act, 2010 are applicable in the case of the petitioner/Combined Military Hospital which is run and governed under the direct supervision of the Pakistan Army and is exempted from operation of this Act in view of Section 1(3)
(a); and whether the Punjab Labour Court having jurisdiction to the extent of Punjab can also take cognizance of the matters relating to trans-provincial departments. After having answered all these quarries in favour of the respondent, one should proceed further to decide the case on merits.
7. To better appreciate the position, relevant provisions of the Punjab Industrial Relations Act, 2010 may be referred first:--- Preamble of the Punjab Industrial Relations Act, 2010 shows that this Act has been promulgated to regulate 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.
' Section 1(1) of the Act provides that this Act may be cited as the Punjab Industrial Relations Act, 2Q10.
' Section 1(2) stretches territorial jurisdiction of the Act to the whole of Punjab.
' Section 1(3) not only provides application of the Act to certain persons but also exempts certain persons/entities from operation of this Act. It runs as follow:--- "1.(3) It shall apply to all persons employed in any establishment or industry, but shall not apply to any person employed:---
(a) in the Police or any of the Defence Services of Pakistan or any services or installations exclusively connected with or incidental to the Armed Forces of Pakistan including an ordnance factory maintained by the Federal Government; (b)
(c) etc.
8. A combined study of the above-quoted/referred provisions of law would make it crystal clear that first of all this Act is applicable only to the persons employed in any "establishment" or "industry" Section 1(3), and secondly that the said establishment or industry should be located only within the Province of Punjab and not beyond that, Section 1(2). Clause (a) of Section 1(3) of the Act quoted above clearly exempts the persons employed in Police, Defence Services of Pakistan and even the persons employed in any services or installations exclusively connected with or incidental to the Armed Forces of Pakistan. The question is whether the petitioner/Combined Military Hospital is not an installation exclusively connected with or incidental to the Armed Forces of Pakistan for its service and comes within the definition of establishment or industry and thus provisions of the Punjab Industrial Relations Act, 2010 are applicable to it.
9. The Pakistan Army was raised to defend Pakistan against external aggression or threat of war, and, subject to law, act in aid of civil power when called upon to do so, can be broken down in following two ways:--- ' OPERATIONAL AND ADMINISTRATIVE OPERATIONALLYc the Pakistan Army is divided in eleven Corps.
(i) A Corps usually consists of two or more Divisions and is commanded by Lt. General.
(ii) A Division is commanded by a Major General and usually comprises more than three Brigades.
(iii) A Brigade is under the. Command of Brigadier and comprises three or more Battalions.
(iv) A Battalion is commanded by Lt. Colonel.
' ADMINISTRATIVELY the Pakistan Army is divided into two main Branches:--- ' ARMS AND SERVICES Arms consists of:---
(i) Infantry,
(ii) Armour,
(iii) Artillery and
(iv) Army Air Defence ' Services consists of eight Corps, namely:---
(i) Army Ordnance Corps (AOC),
(ii) Corps of Electrical and Mechanical Engineering (EME)
(iii) Army Service Corps. (ASC),
(iv) Army Education Corps (AEC),
(v) Corps of Military Police (CMP),
(vi) Remount, Veterinary and Farming Corps (RV&FC)
(vii) Army Medical Corps and
(viii) Corps of Military Intelligence (CMI).
10. A brief history of the Combined Military Hospitals may also be stated here which to some extent is also relevant to better understand the constitution of Combined Military Hospitals in Pakistan.
' During the British Era, the Royal Indian Army troops depended for their medical treatment entirely on their regimental hospitals. However, in 1918 Station Hospitals were sanctioned for the Indian troops. The Indian Hospital Corps (IHC) initially was divided into 10 Division Companies correspondent to 10 existing Military Divisions, in India and Burma. They were located at Peshawar, Rawalpindi, Lahore, Quetta, Mhow, Poona, Meerut, Lucknow, Secunderabad and Rangoon. Later on in 1932 the whole corps was reorganized on command basis five companies. After the World War II it was felt necessitated and thus a homogeneous corps by amalgamating Indian Medical Services, Indian Medical Department and Indian Hospital Corps was created which was named as Indian Army Medical Corps (IAMC) in 1943. The medical institutions of the IAMC were concentrated in the areas, most of which were subsequently included in Pakistan probably because bulk of the troops of the British Indian Army were recruited from the areas, which later on became Pakistan. In that Era since there was constant threat from across the northwestern borders so army was deployed at large scale on this border. Rawalpindi was the pivotal military base from where they controlled the command, logistics and services provided to those troops. It was the Headquarter of Northern Command India. The troops of British Indian Army were deployed over an extensive area mainly in the heights of Chitral in the north-west and to Burma in the east and were thus exposed to the tropical climate. The major bulk of their health related problems were of tropical infections and parasitic infestation. The medial services were committed for the prevention and treatment of tropical diseases. Combined Military Hospital (CMH) and Military Hospital (MH) were the largest and the most well equipped hospitals in this area. The role of Combined Military Hospitals was to provide in door and out-door medical and surgical treatment to the army subjects. They serve as Training Centre for medical cadets, internees, post graduate fellowship trainees, nursing cadets and nursing officers and the paramedical staff and also over-see the preventive aspects of health care provision in the cantonments. Health surveillance of the military personnels was also done through annual medical checkups and in all CMHs studies on subjects related to health of troops were also given.
11. Combined Military Hospitals in Pakistan have been categorized in three classes, 'A', 'B' and 'C'. A Brigadier is the Commandant of an 'A' class hospital whereas a Colonel is the Commanding Officer of a 'B' class hospital. 'C' class hospital is run under the command of a Lt. Colonel. There is no cavil to the proposition that all appointments/ termination from service of Army Personnels or even of civil employees are made by or on behalf of Commandant Officer who is a serving Brigadier or Colonel and no civil authorities have any power to make such appointments/terminations etc.
12. The above visit to the formation of the Pakistan Army and the history of C.M.Hs. Makes it more than clear that the Combined Military Hospitals are established for services exclusively connected with the Armed Forces of Pakistan which are under the direct command of Pakistan Army Medical Corps and all the employees working in those hospitals are active part of Pakistan Army. It is also clarified that while dealing with the disciplinary cases the employees working in Arms or Services are treated alike under Section 2(1)(c) of the Pakistan army Act, 1952. Therefore, the Punjab Labour Court had no jurisdiction to entertain the grievance petition against the petitioner.
13. A similar question was dealt with by the Hon'ble Supreme Court in Rehmat Gill and another v.
Quetta Cantonment Board (PLD 1983 SC 133). To better understand the issue, brief facts of the said case may be stated first:--- ' Rehmat Gill and another, petitioners in the said petitions were employees of the Quetta Cantonment Board one a Sweeper and the other a Chowkidar. They were dismissed from service.
They filed petitions under Section 25-A of the erstwhile Industrial Relations Ordinance, in the Labour Court. Preliminary Objection was raised by the Cantonment Board as to competence of the proceedings before the Labour Court on the ground that the Cantonment Board was discharging functions in connection with the Armed Forces and in view of the provisions made in Section 1(3), the Industrial Relations Ordinance was inapplicable to its employees. The Labour Court overruled this objection. Appeal filed by the respondent-Cantonment Board was also dismissed by the Appellate Tribunal holding that the Cantonment Boards were not performing any functions directly or indirectly concerned with or incidental to the functions of the Armed Forces and consequently its employees could redress their grievances by resorting to Section 25-A of the Industrial Relations Ordinance. The Cantonment Board did not sit at rest and invoked the Constitutional jurisdiction of learned Balochistan High Court. The learned High Court after thorough examination of law on the point held that employees of Cantonment Board could not avail of the provisions of the Industrial Relations Ordinance because they stood excluded from its operation by Section 1(3) of the Industrial Relations Ordinance. Feeling aggrieved of this order of the High Court, Rehmat Gill etc. Approached the Hon'bie Supreme Court by way of petitions for leave to appeal which were converted into appeals to consider whether Cantonment Board was performing functions connected with Armed Forces so as to exclude the operation of Industrial Relations Ordinance on the basis of its Section 1(3) thereby disentitling them to the remedy provided under Section 25-A of the Industrial Relations Ordinance. Ultimately the appeals were dismissed and it was held by the Hon'ble Supreme Court as under:- "The ordinary dictionary meaning of Cantonment (Chambers Shorter English Dictionary) is "the temporary quarters of troops in India a permanent military town". The Cantonments Act, 1924 reflects and recognizes this meaning. The Central Government is authorized (section 3) to declare by notification in the official Gazette a cantonment. Only such place or places can be declared a cantonment where "any part of the regular forces o the regular air force of Pakistan is quartered or which being in the vicinity of any such place or places is or are required for the service of such forces." The very raison detre fora cantonment is the quartering or the requirements in the vicinity concerning the quartering of regular forces. In this context therefore all the duties of cantonments, though some of them may be routine duties of a purely municipal character, are directed towards the quartering of the troops and their requirements. The contention of the appellants is that Cantonment Board is not an installation or establishment nor services connected with Armed Forces and service therein cannot, for that reason, qualify for exemption. It is true that the Cantonment Board is riot an installation but it is difficult to accept that it is not concerned with services connected with defence. The management and administration of the Cantonments vests in the Cantonment Boards. The Cantonments themselves being the quarters of the Armed Forces, their management and upkeep is necessarily a service which is directly concerned with the Armed Forces, and only incidentally with civilian population residing in Cantonments. The employees of the Cantonment Board are, therefore, excluded from the application of Industrial Relations Ordinance."
14. Having thus looked at from whatever angle it becomes clear that C.M.H. Is directly concerned and connected with the services of Armed Forces and thus neither its employees can be termed as Workmen nor the provisions of PIRA, 2010 are applicable to it in view of Section 1(3)(a).
15. So far as the objection of learned counsel for the respondent is concerned that alternate remedy of filing an appeal was available to the petitioner under the Punjab Industrial Relations Act, 2010, suffice it to say that since the said Act is not applicable to the persons related to the Defence, as held above, as such the appeal was not competent and only the Constitutional petition is maintainable.
16. Once this Court has come to the affirmed view that the learned Punjab Labour Court No. 8, Bahawalpur had no jurisdiction to entertain the grievance petition of the respondent, I do not want to resolve the factual controversy whether the respondent was habitual absentee and whether proceedings were taken against him as per law or verbal orders of the petitioner were in accordance with law, lest the same should not prejudice case of the respondent who may have recourse to any other forum which is proper for redressal of his grievance by filing appeal etc. Against the order of termination. Even otherwise factual question cannot be resolved by this Court in exercise of Constitutional jurisdiction.
17. The net result of the above discussions and observations is that this Constitutional petition is accepted, the impugned order of the learned Punjab Labour Court No. 8, Bahawalpur is set aside being without jurisdiction. However, the respondent may avail of remedy against his termination from service available to him under the law. If the respondent resort to said remedy it is expected that the appellate authority shall consider the same sympathetically.