MUHAMMAD KAMRAN KHAN MULAKHAIL, J.--- This petition has been filed through the petitioner who described himself as the General Secretary of GELCAP Pakistan Employees Union, wherein he sought a writ against the management of the respondents' establishment (MESSRS GELCAPs (Pvt.)
Limited) and their actions and reactions are sought to be declared as to devilment of unfair labour practice. An injunction is also sought to refrain the respondents from terminating, removing, retrenching and dismissing the office bearers and the workers/members of the petitioner's union, or otherwise from closing down the establishment.
2. The learned counsel for the petitioner referred to order dated 19-3-2012 passed by the learned IIIrd Labour Court, Balochistan at Hub, and stated that previously on strength of the afore-referred order the respondents' establishment was closed down, however, subsequently, it was re- established and certain workers have also been employed. He further contended that the petitioner's labour union submitted a 'Charter of Demand' on behalf of the workers of the establishment and the petitioner apprehends that he, the office bearers and the workers/ members of the union will be removed from their employment due to hot perusal of their charter of demand. He further averted that the removal of any employee/worker or the office bearers of their union will amount to unfair labour practice, therefore, directions were sought to restrain the private respondents from taking any such action against the petitioner, the office bearers and the members of the union.
3.. We have heard the learned counsel at length; have gone through the case file and the relevant provisions of prevailing law. It is pertinent to add that in the Constitution of the Islamic Republic of Pakistan, 1973, (the Constitution), on 19th April, 2002 after having received the assent of the President of Pakistan, the 18th Constitutional Amendment Act-X of 2010, was promulgated.
Whereby, on omission of concurrent list, contained in Part-II of the fourth schedule of the constitution, the matters relating to labour laws have been devolved in the Provinces. Whereas, in the Province of Balochistan a new labour law namely, Balochistan Industrial Relations Act, 2010 ("The Act, 2010") was promulgated, but the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 is still in field, wherein its schedule contains the standing Order 11-A, which is related to closure of establishment, while section 41 of the Act 2010 pertains to the grievance of any individual, as well as, to the Combined Bargaining Agent ("CBA") for redressal of any such grievance. The both provisions being relevant are reproduced here under:--- ' The section 41 of Act, 2010 provides as under:---
41. Redressal of individual grievance. --- (1) A worker may bring his grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement for the time being in force to the notice of his employer in writing, either himself or through his shop steward or collective bargaining agent within three months of the day on which the cause of such grievance arises.
(2) Where a worker himself brings his grievance to the notice of the employer, the employer shall, within fifteen days of the grievance being brought to his notice, communicate his decision in writing to the worker.
(3) Where a worker brings his grievance to the notice of his employer through his shop steward or collective bargaining agent, the employer shall, within seven days of the grievance being brought to his notice, communicate his decision in writing to the shop steward or as the case may be the collective bargaining agent.
(4) If the employer fails to communicate a decision within the period specified in subsection (2) or, as the case may be subsection (3), or if the worker is dissatisfied with such decision, the worker or the shop steward may take the matter to his collective bargaining agent or the Labour Court or, as the case may be, the collective bargaining agent may take the matter to the Labour Court, and where the matter is taken to the Labour Court, it shall give a decision within seven days from the date of the matter being brought before it as if such matter were an industrial dispute: ' Provided that a worker who desires to so take the matter to the Labour Court shall do so within a period of two months from the date of the communication of the employer or, as the case may be from the expiry of the period mentioned in subsection (2), or subsection (3), as the case may be.
(5) In adjudicating and determining a grievance under subsection (4), the Labour Court shall go into all the facts of the case and pass such, orders as may be just and proper in the circumstances of the case.
(6) If a decision under subsection (4) or an order under subsection (5) given by the Labour Court or a decision of the Tribunal in an appeal against such a decision or order is not given effect to or complied with within a week or within the period specified in such order or decision, the defaulter shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to fifty thousand rupees, or with both.
(7) No person shall be prosecuted under subsection (6) except on a complaint in writing--
(a) by the workman if the order or decision in his favour is not implemented within the period specified therein; or
(b) by the Labour Court or Tribunal, if an order or decision thereof is not complied with.
(8) For the purposes of this section, workers having common grievance arising out of a common cause of action may make a joint application to the Labour Court."
' While the provision of Standing Order 11-A reads as follows:- Industrial and Commercial Employment (Standing Orders) Ordinance, 1968: 11-A. Closure of establishment. - Notwithstanding anything contained in Standing Order 11, no employer shall [terminate the employment of more than fifty percent of the workmen or] close down the whole of the establishment without prior permission of the Labour Court in this behalf, except in the event of fire, catastrophe, stoppage of power supply, epidemics or civil commotion.
' The above quoted provisions of two different statutes clearly provide the procedure for closure of establishment, as well as, the procedure for redressal of grievance of any individual to be brought before the labour court either by himself or through his shop steward or through collective Bargaining Agent (CBA). While subsection (8) of section 41 of the Act, 2010 completely addresses the grievance of the petitioner, under which the workers having a common' grievance arising out of a common cause may make a joint application to the labour court. The apprehension of the petitioner could not be substantiated in the light of relevant law, as well as, the law relating to issuance of writ. Presently, no application of employer/respondent is pending before the labour court for permission to close down the establishment and to terminate the services of its employees. The petitioner in the capacity of individual worker or being representative/office bearer of labour union, despite having the status of CBA cannot initiate litigation on the basis of apprehended cause of action, which might have born in his mind but does not exist physically. No vested right of the petitioner is likely to be B affected for the simple reason that no such order is in field.
4. We have noticed while perusing the case file, particularly, the documents appended thereto, whereby , the referred to order dated 19-3-2012, passed by the learned 3rd Labour Court, on an Application No,1 of 2012, filed by respondents Nos.2 and 3, begins with following passage: "Brief facts of the application are that applicants filed the instant application with averments that applicant's establishment is a corporate body and registered under the Factories Act, 1934 as well as Companies Ordinance, 1984 as well as under Employees Old Age Benefit Act, 1976 and under the Provincial Employees Social Security Ordinance, 1965."
' The referred to passage of the order supra on which the petitioner relies, as the same has been filed by him, states that the respondent's establishment is registered and functioning under the Companies Ordinance, 1984. Since the respondent's organization/ establishment is neither engaged nor performing the affairs of the State but enjoys the status of private business entity.
Thus, for all practical purposes and jurisdiction, the respondent's establishment is private limited company. However, the question of 'unfair labour practice' is linked with a separate and independent cause of action, which being a pure question of facts, requires the evidence to prove or disprove the same. Thus, cannot be. Agitated and thereby cannot be resolved in constitutional jurisdiction of this court.
5. Be that as it may, a proper remedy, under the provision of section 41 of the Act, 2010 is available to the petitioner's labour union in case they felt aggrieved from termination of their services.
Needless to add here that this is the right of every employer to terminate the services of his employee on any ground, which is legally available to it, provided that the procedure as contemplated by the prevailing law is followed in letter and spirit. The provisions of the Act, 2010 being basic and comprehensive in nature, provides a complete procedure for redressal of any such grievance: ' For the aforesaid reasons, we are of the view that: (1) the jurisdiction of this court under Article 199 of constitution cannot be invoked, when a well-defined alternate remedy is already available to the petitioner. (2) The petition involved the disputed question of facts which could not be answered in the writ jurisdiction of this court and (3) the respondents' establishment is purely private limited company being a body corporate, against which the petition under the Article 199 of the Constitution is not maintainable. Reference is made to the Salahuddin's case PLD 1975 Supreme Court 244 and Maqsood Ahmed Toor's case 2000 SCM R 928.