' The appellant/applicant being aggrieved by order dated 30/7/2013 passed by Learned District & Sessions Judge/Presiding Officer Labour Court 1st Balochistan Quetta in Case No. 23/2013 wherein application under Section 50 of BIRA, 2010 was dismissed while considering an application of appellant under Order XXXIX Rule 1 & 2 read with Section 151, CPC and an application of respondent for dismissal of the application filed the instant appeal.
2. For disposal of this appeal the brief facts as narrated in application under Section 50 of BIRA, 2010 are that the appellant/applicant union duly being declared as CBA therefore being legal body the applicant union has been looking after the welfare of the Labour and in this regard a Charter of Demand was submitted before Respondent No. 2 on 3/9/2011 and negotiation with Respondents No. 1 & 2 failed. Thereafter the Learned Labour Court in case 24/2011 was approached which was dismissed through judgment dated 11/10/2011 whereof Labour Appellate Tribunal in appeal directed the applicant union to follow/adopt reconciling proceedings available in BIRA, 2010 and in case of failure the applicant/appellant may approach the Learned Labour Court. In compliance of above mentioned directions he approached Registrar Trade Union to hold conciliation proceedings but Respondents Nos. 1 & 2 did not comply with the order and consequently the Registrar Trade Union on 16/5/2013 announced that the management of bank is not cooperating in the proceedings and a letter referred to Labour Appellate Tribunal whereof the Registrar was directed to fulfill other proceedings. Further it is the case of appellant/applicant that its union has been declared CBA by respondent Registrar while Respondent No. 3 is a pocket union which is also non-CBA and the negotiations of bank with the said union are illegal without any mandate of Labour Laws. On the other hand the case of hank without submitting written statement filed an application for dismissal of petition of applicants on the ground of jurisdiction in view of IRO.
2011. Further stated that the applicant/appellant is not registered with NIRC.
3. The learned counsel for appellant contended that the impugned order is not sustainable for the reason that neither issue framed nor evidence was recorded. Further contended that the Learned Labour Court wrongly assumed that the application of appellant hit by Section 11 of, CPC under the provision of res-judicta. Lastly contended that when bank respondent did not cooperate in first stage following the other remedy were useless in view of its attitude. The learned counsel for Respondents No. 1 & 2 contended that in view of judgment of Honorable Supreme Court of Pakistan dated 13/2/2013 the jurisdiction of NIRC has been recognized whereof all Labour Courts and that of Appellate Tribunal have no jurisdiction to entertain any matter relating to Islamabad capital territory or establishments carrying on businesses in more than one province. The learned counsel for Respondent No. 3 adopted the arguments of learned counsel for Respondents Nos. 1 & 2 in addition submitted that the Habib Bank establishment is one unit and its union has been registered with NIRC and declared CBA. The representative of Respondent No. 4 stated that in view of provision of BIRA, 2010 the applicant being a registered union was declared CBA.
4. The Learned Labour Court while dismissed the application observed as under, "keeping in view the all discussion, documents and Orders of Superior Courts, I reached to the conclusion that the petition along with stay application is not maintainable before this Honorable Court having jurisdiction under Section 1 subsection (3) of Industrial Relation Act, 2012. It is hold by Honorable Supreme Court of Pakistan that National Industrial Relation Commission has jurisdiction to adjudicate upon the matter. So, the petition and stay application are dismissed accordingly with direction to produce the matter before the forum having jurisdiction, if the petitioner wants? The interim order dated 10/6/2013 is hereby recalled"
5. Before coming on the judgment of Honorable Supreme Court of Pakistan dated 13/2/2013 it is necessary 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 Nos. 26 & 27 as such the Federal Government as well as Provincial Government both were competent to make legislation in this behalf. The Federal Government promulgated the IRA, 1969 which was repealed by IRO, 2002 and same was repealed by IRA, 2008. Section 87 (3) of IRA, 2008 provided that the said act shall unless repealed earlier stand repealed on 30/4/2010. Meaning thereby it was a temporary legislation which was too dies on 30/4/2010 automatically if it was not extended by legislative measure before the repeal of IRA, 2008.
6. The 18th Constitution Amendment was passed on 20/4/2010 whereby the concurrent legislative list was abolished and the matter relating to Labour and trade union 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 of respective province. After the said amendment the Government of Balochistan issued BIRO, 2010 which was repealed by BIRA, 2010 on 26/10/2010. Since then the Labour Courts as well as Labour Appellate Tribunal were created and working under the same law.
7. While discussing the 18th Constitution amendment Honorable Supreme Court of Pakistan observed in 2011 PLC 89 as under: "After abolition of Concurrent Legislative List by means of 18th Constitutional Amendment, no federal legislation could be made on Labour matters accept recourse to provisions of Arta 144 (1) of the Constitution--Respective Provincial Assemblies had enacted respective laws on subject of Labour and trade unions after about two months of expiry of Industrial Relations Act, 2008, during which there was no legislation on the subject--Industrial Relations Laws being procedural in nature would apply retrospectively w.e.f. 1-52010--After newly enacted Provincial Laws dealing with industrial disputes, persons having any grievance could approach appropriate new forum provided under respective Provincial Laws--Mere change of forum would not affect rights of a person--During interregnum period w.e.f. 30-04-2010, when no Industrial Relation Law was holding field, workers had remedy under ordinary laws prevailing at such time as in absence of a special law, ordinary/general laws would come forward to fill in the vacuum"
8. Giving the brief history of Labour laws and observation of Honorable Supreme Court in above cited judgment admittedly respective provincial assemblies enacted respective laws on subject of Labour and trade unions after about two months of expiry of Industrial Relation Act, 2008 during which there was no legislation on the subject from 30/4/2010 till 26/10/2010 and no Labour Law was available in province of Balochistan and in this regard Honorable Supreme Court in above cited judgment held that the aggrieved person could approached ordinary Courts instead of special law.
9. The situation in Islamabad capital territory was quite different for the reason that IRA, 2008 was repealed under its Section 87 (3) on 30/4/2010 and IRO, 2011 promulgated on 18/7/2011 and repealed by IRA, 2012 on 14/3/2012. Meaning thereby and as held by Honorable Supreme Court of Pakistan in judgment dated 13/2/2013 during this period no Labour Law was available in Islamabad capital territory. The judgment of Honorable Supreme Court of Pakistan dated 13/2/2013 is not helpful to respondents for the reason that the petitions/applications were decided by the Learned Labour Courts in Islamabad territory during the period 30/4/2010 to 18/7/2011 when IRO, 2011 was promulgated. The details of civil appeals and civil petitions are as under in support of above contention,
(i) Civil Appeal No. 1150/2012, CA No. 127/2013 and C.P Nos. 1754, 1755 of 2012 filed against the judgments of Honorable High Court of Islamabad. The detail is as under,
(ii) W.P. No. 1961/2011 decided on 25/7/2012, W.P. No. 2186/2011 decided on 28/9/2012 and W.P. No. 2517, 1518 of 2012 decided on 13/11/2012. It will be pertain to mention here C.P. Nos. 1754-1755 of 2012 wherein two separate judgments of Learned Labour Court of Islamabad was challenged which were returned to appellant in view of IRO, 2011 on 24/3/2011.
(iii) The facts of CA. No. 1150/2012 the Respondents Nos. 2 to 18 firstly approached the Learned Federal Service Tribunal but in view of judgment of Honorable Supreme Court of Pakistan with regard to Section 2 of Service Tribunal were returned to appellant whereof they approached Learned Labour Court of Islamabad which were allowed on 11/1/2011. Thereafter in view of non compliance of judgment of Learned Labour Court dated 11/1/2011 the Respondents No. 2 to 16 filed contempt proceedings before Labour Court which was decided favorably on 27/5/2011.
(iv) CA No. 127/2013 was filed against the judgment of Honorable Islamabad High Court dated 15/6/2011 against the judgment/order of Learned Labour Court of Islamabad dated 26/6/2010.
10. The above data indicates that the matters under appeal before Honorable Supreme Court of Pakistan were decided by Learned Labour Court of Islamabad during the period when there was no Labour Laws in Islamabad capital territory after repeal of IRA, 2008. The Honorable Supreme Court of Pakistan in above mentioned judgment at Para No. 7 held as under: "In the case of Air League of PIAC Employees (supra) this Court has held that the Industrial Relations Act, 2008 stood repealed on the expiry of period mentioned in Section 87 (3) of the Act and the consequence of such repeal will render the judgment of the Court corum non-judice. The Act stood repealed on 30/4/2010 and after that there was no legislation in the field of Labour dispensation until 18/7/2011, when the Industrial Relation Ordinance, 2011 was promulgated. The judgments of the Labour Court dated 26/6/2010, 11/1/2011 and 24/3/2011 were passed during the period when the Act of 2008 stood repealed and there was no legislation in the field. In the light of the law laid down in the case of Air League PIAC Employees by this Court, the judgments of the Labour Court will be corum non-judice. The result of it would be that the order of the Labour Court dated 27/5/2011, on the application for Contempt filed by the respondents in Civil Appeal No. 1150 of 2012 will also be without jurisdiction and that the judgment of the Labour Court being corum non- judice was not capable of being implemented. Thus Writ Petition No. 1961/11 filed by the appellant in CA No. 1150/12 will stand allowed and the impugned judgment dated 25/7/2012 is set-aside. The judgment of the Labour Court dated 26/6/2010 in CA No. 127/13 was maintained up to the High Court, where Writ Petition No. 2186/11 of the appellant was dismissed. In the face of the findings that the said judgment of the Labour Court was corum non-judice. The said Writ Petition No. 2186/11 is allowed and the impugned judgment dated 28/9/2012 is set-aside. The two judgments dated 24/3/2011 of the Labour Court in Civil Petition Nos. 1754 and 1755 being Corum non-judice, the filing of Contempt Proceedings for its implementation is also without jurisdiction as the judgments of the Labour Court are not capable of being implemented, thus Writ Petitions Nos. 2517 and 2518/12 stands allowed. The result of it would be that the grievance petitions, which the Private respondents have filed now stained revived and will be decided in accordance with law by the forum, which is available now for their determination. The Industrial Relations Commission has been established by the Industrial Relation Act, 2012 for redress of the individual grievance of the workman.
Consequently, all these grievance petitions are remanded accordingly for deciding the same in accordance with law"
' After going through the above-mentioned judgment of Honorable Supreme Court of Pakistan conclusion can be drawn that the cases mentioned in the judgment pertain to Islamabad capital territory and decided during the period of 30/4/2010 to 18/7/2011 by Labour Courts of Islamabad.
Whereas the" respective provincial assemblies enacted respective Labour Laws and accordingly Balochistan assembly enacted BIRA, 2010 on 26/10/2010. The Government of Punjab issued PIRO, 2010 on 13/6/2010 and respective assembly repealed the same as PIRA, 2010 on 9/12/2010. Province of Sindh on 5/7/2010 revived IRO, 2008 with effect 1/5/2010 as if it had never deemed repealed.
Province of Khyber Pakhtunkhwa Promulgated KIRO, 2010 but as mentioned herein above no Labour Law was enacted in Islamabad capital territory till IRO, 2011 was promulgated. From concluding Para of judgment of Honorable Supreme Court of Pakistan it appeared that all the civil appeals and petitions which has been decided by Honorable Supreme Court of Pakistan were the judgment/order of Labour Courts of Islamabad passed during the period of 30/4/2010 to 2011 were declared corum non-judice. For the cost of repetition the concluding Para is again reproduced as under: "Consequently, all these grievance petitions are remanded accordingly for deciding the same in accordance with law"
' The contention of learned counsel for Respondent No. 1 & 2 is not correct because the cases were remanded to NIRC which were before the Honorable Supreme Court of Pakistan pertaining to Islamabad capital territory during the period when there was no Labour Laws.
11. The Learned Labour Judge relied upon above judgment but perhaps did not go through detail judgment and only reproduced the short order of Honorable Supreme Court of Pakistan the detail of that portion has been reproduced hereinabove.
12. The Learned Labour Judge while dismissing the application considering Section 2 sub-sections (4), (5) and Sections 12 and 14 but perhaps overlooked the Section 3 read with Section 34, Section 54 (A) and explanation of Section 57 of IRA, 2012 which are relevant to see the jurisdiction of NIRC and that of Labour Court.
13. Section 3 of IRA, 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"
' Admittedly BIRA, 2010 was enacted much earlier than IRA, 2012 and Labour Courts and Appellate Tribunal were established and working under BIRA, 2010 and its Section 2 states, "It extends to the whole of Baluchistan except tribal areas" In same context Section 4 is reproduced as under: "It shall apply to all persons employed in any establishment or industry to the extent of Baluchistan"
' The matter in hand pertain to a Registered Trade Union registered with Registrar Trade Union Balochistan and declared CBA. It has not joined a federation and confined its activities to the extent of Balochistan.
14. Jointly reading of Section 3 of IRA, 2012 read with Section 34 (2), Section 54 (a) and explanation of Section 57, results can be drawn that the jurisdiction of NIRC is confined to the matters affecting the affairs of establishment and employees within country or within the provinces where the employer has its own establishments in more than one province. Again if trade unions or CBU representing such employees having their membership in more than one province. Moreover unfair Labour practice is the subject matter of the NIRC. Here in the case position is different. From perusal of Charter of Demand dated 3/9/2011 it appeared that all the demands pertaining to province of Balochistan having no relevancy with other provinces as well as Islamabad capital territory.
Furthermore the members of appellant/applicant union are not member of any Federation. In matter in hand no question of unfair Labour practice is involved.
15. Section 34 (2) of IRA, 2012 further explain the jurisdiction of NIRC which 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 above quoted Section further explains the jurisdiction of NIRC. Meaning thereby that the matter of industrial dispute affecting all employers or workers of the establishment in more than one province. For further clarification it means that any industrial dispute which equally exists in more than one province in different establishment come under the jurisdiction of NIRC. Furthermore if the trade union or Federation representing such employees in cases where establishment is extended in more than one province. The case in hand is neither an industrial dispute affecting all the employer or workers of the establishment in more than one province rather from perusal of Charter of Demand it is quite clear that this is only to the extent of province of Balochistan. Furthermore the appellant/applicant is not a Federation nor belongs to it and their membership are confined only to the province of Balochistan.
16. Section 54 (A) of IRA, 2012 defined 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"
' Though in case in hand Respondent No. 3 claim to be a Federation namely Workers Front of Pakistan and claimed that he has been registered with NIRC and declared as CBU but the applicant/appellant is a separate unit and not a member of Federation nor its members are the members of that Federation. Contrary to this appellant/applicant claimed that he is a registered union with Registrar Trade Union Balochistan and declared as CBA. Its members are confined to the extent of Balochistan and likely Charter of Demand is also that of province of Baluchistan.
17. In view of above Section of IRA, 2012 the matter in hand does not fall within the jurisdiction of NIRC. It is noted that the point of jurisdiction of Labour Courts were agitated and decided in Labour Appeal No. 2/2013 against which no judgment/observation has been received from higher forum.
Furthermore in continuation of this matter in Labour Appeal No. 52/2011 also resolved the jurisdiction of Labour Court but according to learned counsel for the parties no appeal/revision has been filed before higher forum. Meaning thereby in Labour Appeal No. 52/2011 the decision of this Tribunal is still in field.
18. Another aspect of case is very interesting that according to Respondent No. 3 he was declared CBU by Registrar NIRC. From perusal of CBA certificate of-Respondent No. 3 it appeared that it was declared CBA under Industrial Relation Ordinance, 2002 with effect 13/9/2008. Today IRO, 2002 is not applicable for the reason that it was repealed by IRA, 2008 which was too repealed on 30/4/2010. Moreover Respondent No. 3 has not been registered and declared CBA under IRA, 2012.
19. On the other hand the CBA certificate of appellant/ applicant namely Habib Bank Employees Union Quetta declared CBA representing employees and .Workers in Habib Bank Balochistan Quetta under the provision of BIRA, 2010 which is still in field and confined to the extent of Balochistan. Therefore in view of above CBA certificate it is not clear that Respondent No. 3 representing a Federation.
20. The learned counsel for Respondent No 1 & 2 and that of 3 did not argue on the point of res- judicata but the Learned Labour Judge also dismissed the application on this point. The operative portion is reproduced as under: ' The matter of petitioner is lacking for the said mentioned direction because they did not follow the direction of Labour Appellate Tribunal and have not fulfilled the mandatory provision as per direction and thereafter not intimated the Labour Appellate Tribunal. Again come before this Honorable Court with this petition as the same was dismissed by my predecessor vide judgment dated 11/10/2012, on the same ground and prayers, therefore, the .Preset matter clearly hit by Section 11 of CPC, under the provision of res-judicata."
' The Learned Labour Judge perhaps did not go through the judgment/order of this Tribunal wherein it was concluded as under: "In the light of above mentioned mandatory legal provisions the appeal has no force. However the appellants are allowed to fulfill the mandatory provisions and in case of failure than approach the Labour Court according to law if so advised"
' Moreover the provision of 11 of, CPC has not attracted the matter before Learned Labour Court for the reason that while appeal was dismissed the above remedies were allowed to appellant/applicant who , appeared before Learned Registrar Trade Union but due to non- cooperation of bank representative the first stage was failed and the same was intimated to this Tribunal whereof the Registrar was asked to further proceeds according to law. In this respect the contention of learned counsel for appellant/applicant is that in first stage when the employer did not cooperate then there would be no hope in further proceedings. The argument of learned counsel having force with regard to further proceedings. Therefore they approached Learned Labour Court in continuation of previous petition/appeal before Learned Labour Court, Tribunal and Registrar Trade Union. Therefore the Learned Labour Court wrongly assumed that the case of appellant/applicant hit by Section 11 of, CPC and that point even did not touch by the learned counsel for respondents.
21. In view of judgments of Honorable Supreme Court of Pakistan, Sections of IRA, 2012 and BIRA, 2010 quoted above the order dated 30/7/2013 passed by Learned Labour Judge in case No. 23/2013 is set-aside. Consequently appeal is allowed with the direction that bank authorities to negotiate with appellant/applicant in respect of Charter of Demand dated 3/9/2011 in the presence of Registrar Trade Union strictly according to law. However the parties are left to bear their own cost.
22. The copy of order along with original record of trial Court be sent to trial Court. Case after completion be consigned to record.