' SHUJAAT ALI KHAN, J.--- By way of filing instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has assailed order dated 9-10-2012 passed by the learned Presiding Officer, Punjab Labour Court No,8, Bahawalpur (respondent No,1).
2. Succinct facts, as spelt out in the instant petition, are that respondent No,2 was removed from service by petitioner No,1 through order dated 2-2-2004. He challenged the same before respondent No,1 by virtue of Grievance Petition which was accepted through judgment dated 28-4- 2004. Aggrieved by the said judgment, the petitioners filed an appeal before the Punjab Labour Appellate Tribunal, Lahore but without any success as the same was dismissed through judgment dated 11-5-2011. After dismissal of appeal filed by the petitioners, respondent No,2 was reinstated in service. Again respondent No,2 filed petition under section 44(4)(c)(f) read with section 33(8) of the Punjab Industrial Relation Act, 2010 (hereinafter to be referred as the Act, 2010) for implementation of judgments passed by respondent No,1 as well as that of Punjab Labour Appellate Tribunal, Lahore. During the course of proceedings on the said petition respondent No,1 directed the petitioners to issue reinstatement order of respondent No,2 in the light of judgment passed by him with a further direction to pay him outstanding wages till 22-10-1012. Being dissatisfied with the said order the petitioners have filed the instant petition.
3. The contentions urged by learned counsel for the petitioners are to the effect that after promulgation of Industrial Relations Ordinance, 201,1 and subsequent Industrial Relations Act, 2012 (hereinafter to be referred as the Act, 2012) respondent No,1 had no jurisdiction to proceed with the application filed by respondent No,2; that while passing the impugned order respondent No,1 did not take into consideration that there was nothing on record that more than 20 persons were serving in the petitioners' hotel, thus his case is covered under the provisions of The Shops and Establishments Ordinance, 1969, therefore, the proceedings regarding implementation of earlier judgments were not maintainable; that PTDC being trans-provincial establishment was not amenable to jurisdiction of Labour Court. In support of his contentions, learned counsel has relied upon the case reported as Pakistan Telecommunication Company Ltd. v. Member NIRC and others (2014 SCMR 535).
4. Conversely, learned counsel appearing on behalf of respondent No,2, while defending the impugned order, submits that the instant petition is not maintainable as the petitioner had alternate remedy of filing revision under section 47(5) of the Act 2010; that when respondent No,1 as well as the Punjab Labour Appellate Tribunal have held the petitioner entitled for reinstatement from the date of termination, the petitioners had no choice to reinstate him from the date of their own choice; that as the earlier judgments passed by respondent No,1 as well as that of appellate Court, having not been challenged any further, have attained' finality and the petitioners have no cheeks to question their legality in these proceedings; that the provisions of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter to be referred as the Ordinance of 1968) are fully applicable inasmuch as according to section 2(b) thereof restaurant is included in commercial establishment and that the petitioners instead of implementing judgments of respondent No,1 as well as that of appellate Court are instituting proceedings before different forums just to delay the matter on one pretext or the other. In support of his contentions learned counsel has relied upon the cases reported as Pak Arab Refinery Ltd. v. Muhammad Rashid (1999 SCMR 373), Mustehkum Cement Ltd. v. Abdul Rashid and others (1998 PLC 172), Javed Ahmad Bhutto v. Federation of Pakistan through Secretary Ministry of Law, Islamabad and 2 others (PLJ 2013 Karachi 67(DB), Pakistan Telecommunications Company Ltd. Through President and 5 others v. Azhar Ali Babar and 2 others (2013 PLC 345), Ali Murad v. National Bank of Pakistan through Board of Directors (2012 PLC 347), Muhammad Anwar Mumtaz v. Pak Arab Refinery Ltd. (PARCO) (2009 PLC 13) and Fauji Sugar Mills through General Manager v. Mehmood Ahmed (2007 TD (Labour) 193).
5. I have heard learned counsel for the parties at considerable length and have also gone through the documents annexed with this petition as well as the case-law cited at the bar.
6. Firstly taking up the most pivotal question that after promulgation of Industrial Relations Ordinance, 2011 and subsequent the Act, 2012, whether the Labour Court has the jurisdiction to entertain or pass any order in a matter where the employer has its offices in more than one provinces, I am of the view that for determination of said question, a perusal of section 57 of the Act, 2012 is of paramount consideration, which for facility of reference is reproduced herein below:- -
57. Additional powers of the Commission. - (1) In addition to powers which the Commission has under this Act---
(a) the Commission shall have power to punish any person who obstructs or abuses its process or disobeys any of its orders or directions, or does anything which tends to prejudice the case of a party before it, or tends to bring it or any of its members in relation to proceedings of the Commission into hatred or contempt, or does anything which, by law, constitutes contempt of Court, with simple imprisonment which may extend to six months or with fine which may extend to fifty thousand rupees, or with both; and
(b) for the purposes of any investigation, enquiry or adjudication to be made by the Commission under this Act, the Chairman or any member of the Commission may at any time between the hours of sunrise and sunset, and any other person authorized in writing by the Chairman or any member of the Commission in this behalf may, after he has given reasonable notice, enter any building, factory, establishment, workshop or other place or premises whatsoever and inspect the same or any work, machinery, appliance or article therein or interrogate any person therein in respect of anything situated therein or any matter relevant to matters before the Commission; and
(2) The Commission may, on the application of a party, or of its own motion,
(a) initiate prosecution, trial or proceedings, or lake action, with regard to any matter relating to its functions;
(b) withdraw from a Labour Court of Province any application, proceedings or appeal relating to unfair labour practice, which fall within jurisdiction of the Commission; and
(c) grant such relief as it may deem fit including interim injunction.
(3) For the purpose of dealing with a case of unfair labour practice of which the Commission is seized, the Commission may---
(a) proceed directly with the case;
(b) ask the Provincial Registrar within whose jurisdiction the case has occurred or is likely to occur to enquire into it and submit a report; or
(c) refer the case to a Provincial Labour Cowl within whose jurisdiction the case has occurred or is likely to occur, either for report or for disposal.
(4) The Labour Court to whom the case is so referred shall enquire into it and, if the case was referred to it for report, forward its report thereon to the Commission or, if the case was referred to it for disposal, continue the proceedings and dispose of the case as if the proceedings had originally commenced before it and grant such relief as the Commission has the power to grant.
(5) Save as provided in subsection (4) no Registrar, Labour Court or Labour Appellant Tribunal shall take any action, or entertain any application or proceedings, in respect of any matter which falls within the jurisdiction of the Commission: ' Provided that no Court, including Labour Court, shall take any action or entertain any application or proceedings in respect of a case of unfair labour practice which is being dealt with by the Commission.
' A perusal of afore-quoted provision, in particular subsection (2)(b) shows that any matter pending before the Labour Court prior to promulgation of aforequoted enactment was to be transferred to National Industrial Relations Commission (NIRC) either on the direction of NIRC itself or on the application of any of the parties to the proceedings. Insofar as case in hand is concerned the main thrust of arguments of learned counsel for respondent No,2 is that as only application for implementation of judgment passed in favour of respondent No,2 was before respondent No,1, the impugned order was validly passed. In this regard, I do not find myself in agreement with learned counsel for the reason that similar question came under discussion before the apex Court of the Country in the case of Pakistan Telecommunication Company Ltd. (supra), referred to by learned counsel for the petitioners, wherein the august Court while upholding order of the NIRC regarding summoning of file from the Labour Court relating to contempt of an order passed by the Labour Court, has inter-alia held as under:--- "It is not the nature of dispute, particularly, unfair labour practice, which confers jurisdiction on one or the other forum but it is the status of the employer or the group of employers, which would determine the jurisdiction of the Provincial Labour Court and that of the NIRC. To be more clear on the point we have no hesitation to hold that once it is established though any means that the employer or group of employers has an establishment, group of establishments, industry, having its branches in more than one Provinces, then the jurisdiction of the NIRC would be exclusive in nature and of overriding and super imposing effects over the Provincial Labour Court for resolving industrial dispute including unfair labour practice, etc. Related to the employer, having its establishment or branches or industrial units in more than one Province and re-course has to be made by the aggrieved party to the NIRC and not to the Provincial Labour Court
15. Accordingly, this appeal is allowed. The impugned judgment dated 26-11-2012 passed by the learned Judge in Chamber of the Lahore High Court, Lahore is set aside and the order of NIRC dated 24-1-2012 withdrawing the contempt petition from Labour Court No,4, Faisalabad to itself is hereby upheld and further proceedings in the matter be taken up by the N1RC and shall be decided positively within two months. "(emphasis provided)
A glance over the afore-quoted portion from the judgment of apex Court of the country makes it crystal clear that nature of proceedings is not relevant for the application of section 57 of the Act, 2012 rather the status of the employer is very crucial. As far as the case under discussion is concerned, admittedly, at the time of passing of impugned order the Act, 2012 was in field and respondent No,1 had become functus officio to pass any order on the petition filed by respondent No,2.
8. Insofar as plea of respondent No,2 that nature of work being done by respondent No,2 is relevant for determination or forum for redressal of his grievance is concerned, suffice it to note that according to judgment in the case of Pakistan Telecommunication Company Ltd. (supra), the august Supreme Court of Pakistan has finally set at rest the said question by observing that the jurisdiction of a forum shall be determined according to status of the employer. It has further been observed in the said judgment that if the employer has its establishment in more than one Provinces, the jurisdiction of the Labour Court is totally barred rather NIRC has the exclusive jurisdiction, thus, this plea of learned counsel for respondent No,2 is not worth consideration.
9. Now coming to contention of learned counsel for respondent No,2 that the impugned order being interim in nature could not be challenged before this Court, I am of the view that when the proceedings before respondent No,2 were coram non judice after coming into play the Act, 2012 an order passed by respondent No,1 cannot be bestowed with stamp of authenticity for the reason that aggrieved person could challenge the same before other forum in the shape of review or revision. This Court, being custodian of fundamental rights of the citizens has the power to determine the jurisdiction of a forum to proceed with any matter especially when violation of a clear cut provisions of law has been agitated.
10. As far as contention of learned counsel for respondent No,2 that the petitioners having been equipped with alternate remedy of filing revision under section 47(5) of the Act, 2010, instant petition is not maintainable is concerned, I am of the opinion that in ordinary course a writ petition is nut maintainable when aggrieved person has alternate remedy but when the order impugned is patently illegal or coram non judice same cannot be allowed to let go simply for the reason that person challenging the same has alternate remedy. If any case law is required a reference can safely be made to the cases of Member (Colonies) Board of Revenue, Punjab Lahore and others v.
Muhammad Shafi and others (2008 SCMR 589), Pakistan Defence Officers Housing Authority Karachi v. Shamim Khan through L. Rs, and 5 others (PLD 2005 SC 592), Ahad Sharif alias Muhammad Ahad and another v. Javad Tariq and others (2006 SCMR 1356), Malik Nazar Hussain v.
National Bank of Pakistan and another (2004 SCMR 28) and Muhammad Hafeez v. Judge Family Court and others (2013 CLC 470).
' Even otherwise, a perusal of section 47 of the Act, 2010 brings it to light that the impugned order does not fall within the category of orders which are revisable under the said provision, thus the instant petition is competent. There is no cavil with the preposition that after having two verdicts in his favour, respondent No,2 is entitled for their E implementation but the moot question is jurisdiction of forum. When the august Supreme Court of Pakistan has decided that in the matters of employees of the establishments having trans-provincial status, jurisdiction of labour Court in any matter is barred, this Court is left with no option but to follow the same.
11. As far as the case-law cited by learned counsel for the respondents, the same stands distinguished for the reason that in none of the cases the preposition involved in the instant case has been discussed. In the wake of judgment of august Supreme Court of Pakistan in the case of Pakistan Telecommunication Company Ltd. (supra) the same becomes irrelevant.
12. For what has been discussed above, I have no hesitation in my mind to hold that on the fateful day respondent No,1 had no jurisdiction to pass any order on the petition filed by respondent No,2.
Consequently, instant petition is accepted, impugned order passed by respondent No,1 is set aside and the petition filed by respondent No,2 shall be transferred by respondent No,1 to NIRC for its adjudication. After transfer of the said petition same shall be decided by NIRC within two months under intimation to the Deputy Registrar (Judicial) of this Bench. There shall be no order as to costs.