FAISAL ZAMAN KHAN, J.--- Through this Intra-Court Appeal, an order dated 31-5-2002 passed by a learned Single Judge-in Chambers in Writ Petition No,17470/1998 has been assailed. By virtue of this order, writ petition filed by the appellant was dismissed.
2. The case set up by the appellant is that he was appointed as Air Conditioner Supervisor with the respondent-department on 3-1-1990. Subsequent to that, he has been working as an Air Conditioner Mechanic. He has been serving the respondent-department as a temporary work charge employee since 1990 with some breaks, however, since 21-11-1996 to 30-6-1998 he remained serving without any break. In view of the fact that appellant has been working for the respondent-department for a continuous period of nine months, a Writ Petition No,28085/1997 was filed by him before this Court for his regularization in service. During the currency of the writ petition, respondent-department produced his termination order dated 1-7-1998. Feeling aggrieved, appellant assailed the said termination order before this Court through Writ Petition No,17470/1998 and the learned Single Judge-in-Chamber vide, order dated 31-5-2002 dismissed the same, therefore, this appeal.
3. At the outset, learned Law Officer appearing on behalf of the respondent-department has raised a preliminary objection that appellant being a workman cannot invoke the jurisdiction of this Court, therefore, the writ petition as well as this ICA are not maintainable. She places reliance on Qaisar and others v. Muhammad Shafaqat Sharif [2012 SCM R 743] to fortify her argument.
4. Replying to the above, learned counsel for the appellant while relying on Trustees of the Port of Karachi v. Muhammad Saleem [1994. SCMR 2213] has submitted that in view of the termination of the appellant, he no more remains to be a workman, therefore, he had no other remedy to assail the order of termination but for to approach this Court through a writ petition.
5. We have heard the learned counsel for the parties and have gone through the available record.
6. The case set up by the appellant is that he has been working for the respondent-department for a considerable period of time without a break, therefore, he became a permanent workman under the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (Ordinance) and, thus, his services could not be terminated in an unceremonious manner.
7. It shall be in the fitness of things to first take up the issue of assumption of jurisdiction by this court as contemplated in judgment reported as Government of Sindh through Secretary Education and Literacy Department and others v. Nizakat Ali and others [2011 SCM R 592]. We have gone through the judgments cited by both the learned counsel. The judgment of Trustees of the Port of Karachi relied upon by learned counsel for the appellant elaborates definition of a workman as contemplated in section 2(xxviii) of Industrial Relations Ordinance, 1969 (IRO). It has been held that an employee whose services have been terminated cannot invoke the jurisdiction of the Labour Court under the IRO.
8. In order to analyze the afore noted question, a comparative reading of the above enactments is required from which one can make out that the mandate to promulgate IRO and the Ordinance is different. From the preamble of IRO it is manifest that the law has been made in order to amend and consolidate laws for A formation of trade unions, the regulation of relations between the employer and the workman and avoidance and settlement of any difference or dispute arising between them and matter ancillary and connected therewith. Contrary to this, the promulgation of the Ordinance is on a different tangent. The preamble of the Ordinance would show that the same is promulgated to amend and consolidate laws relating to Industrial employment. In both these enactments term Workman has been defined, definitions of which are reproduced for convenience:--- IRO 1969 STANDING ORDER 1 (xxviii) "Worker" and "1. Classification of "workman" means any Workmen: (a) Workmen person not falling within the definition employed (including employment [as a supervisor or] as an apprentice) is an establishment or industry for hire or reward either directly or through ashall be classified as--- Permanent, Probationers, Badlis, temporary, apprentices. [(6) Contract worker] contractor whether the (b) A "permanent workman" terms of employment is a workman who has be express or implied, and for the purpose ofbeen engaged on work of permanent nature likely to any proceeding underlast more than nine months this Ordinance in and has satisfactorily relation to an completed a probationaryof employer who is Industrial dispute period of three months in includes a person who the same or another has been dismissed, discharged, retrenched, laid-off oroccupation in the industrial or commercial establishment, and otherwise removed includes a badli who has from employment in been employed for a connection with or as continuous period of three a consequence of thatmonths or for one hundred dispute or whose and eighty-three days dismissal, discharge, retrenchment, lay off, or removal has led toduring any period of twelve consecutive months, including breaks that dispute [but does due to sickness, accident,
9. Similarly under these enactments, remedies have been provided to a Workman in case of any grievance. Under the IRO, by invoking section 25-A of the Act, an employee can approach the Labour Court whereas under the Ordinance, under Standing Order 12 an employee can approach the Labour Court in which, procedure provided under section 25-A of the IRO shall be followed.
10. The distinction drawn between the IRO and the Ordinance qua a Workman to approach the Court is the nature of dispute. A Workman if wish to approach the Labour Court under the IRO, he has to show that an adverse order has been passed against him due to an Industrial Dispute, whereas no rider or embargo like Industrial Dispute has been placed on the rights of the employee to approach the forums available under the Standing Order, 12 for the redress of grievance.
11. The afore noted distinction has been sufficiently discussed and dilated upon by the superior Courts of this Country in judgments reported as Mustehkum Cement Limited through its Managing Director v. Abdul Rashid and others (1998 SCM R 644), Trustees of the Port of Karachi v. Muhammad Salem (1994 SCM R 2213), Syed Matloob Hassan v. Brooke Bond Pakistan Limited Lahore (1992 SCM R 227), Fauji Fertilizer Company v. Punjab Labour Appellate Tribunal, etc. (2002 PLC 25) and Municipal Committee, Gojra through its Administration v.
1. Mst. Tasneem Akhtar,
2. Punjab Labour Appellate Tribunal, Lahore,
3. Punjab Labour Court No,4, Faisalabad (2000 PLC 81)
12. For what has been discussed above, we are of the view that the case of the appellant is not covered by the provisions of IRO and the definition of worker or workman given therein. Appellant was intimated through an order dated 1-7-1998 that his sanctioned period has expired, therefore, his services stand dispensed with. This dispensation of service does not fall within the definition of Industrial Dispute therefore his case squarely falls within the parameters given in Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. In order to throw a challenge to his termination or for his regularization, he had a remedy available to him under the law [Standing Order 12(3)], which he failed to avail. We are in agreement with the objection raised by the learned Law Officer that in the wake of the above, writ petition was not maintainable. We are guided by the dictum laid down by the Hon'ble Supreme Court of Pakistan in judgments reported as Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others [2011 SCM R 1813] and Muhammad Abbasi v. S.H.O. Bhara Kahu and 7 others [PLD 2010 SC 969].
13. Be that as it may, for what has been discussed above, we find that the writ petition filed by the appellant was not maintainable in view of the availability of alternate efficacious remedy therefore the order passed by the learned Single Judge is unexceptionable.
14. As a sequel to the above, this Intra-Court Appeal fails, therefore, the same is dismissed.