' ASAD MUNIR (MEMBER).--- The services of the petitioner, Syed Ali Salman, were terminated by the respondent-Company on 26-4-2013. Feeling aggrieved, the petitioner sought his reinstatement in service through a grievance petition that he filed on 24-5-2013. By its order dated 17-9-2014, the Punjab Labour Court No,1, Lahore, relying on PTCL v. Member NIRC and others (2014 SCM R 535), has returned the petitioner's grievance petition on the ground that the respondent Establishment, being a trans-provincial establishment, the NIRC has exclusive jurisdiction in view of sections 54(i) and 57(5) of the Industrial Relations Act, 2012.
2. Through this revision petition, the legality of the Punjab Labour Court No,1, Lahore's order dated 17-9-2014 has been questioned. Firstly, the learned counsel for the petitioner has referred to the Air League of PIAC Employees v. Federation of Pakistan (2011 SCM R 1254) to contend that after the passing of the 18th Amendment to the Constitution, the subjects of Labour Welfare and Trade Unions have fallen in the provincial legislative domain wherefor the Industrial Relations Ordinance, 2011, or the Industrial Relations Act, 2012, is ultra vires the Constitution and cannot override the provisions of the Punjab Industrial Relations Act, 2010. Secondly, it was argued that PTCL v. Member NIRC and others, supra, is distinguishable and cannot apply where the jurisdiction of a Labour Court has been invoked under Standing Order 12(3) by a workman whose services have not been terminated in connection with or in consequence of an industrial dispute. In response, the learned counsel for the respondent Establishment has relied on the Hon'ble Supreme Court's judgment in case titled PTCL v. Member NIRC and others (2014 SCM R 535) to argue that in view of sections 2(x), 2(xxx), 54(i) and 57(5) of the Industrial Relations Act, 2012, the NIRC has exclusive jurisdiction to adjudicate upon any grievance petition filed by a workman employed in a trans-provincial establishment.
3. First to discuss is the question whether or not the Industrial Relations Act, 2012, is ultra vires the Constitution which was of course left open in PTCL v. Member NIRC and others, supra. However, the Hon'ble Balochistan High Court in its judgment titled Pakistan Workers Federation, Balochistan v.
Government of Pakistan through Federal Secretary, Ministry of Law and Justice, Islamabad (2014 PLC 351) has resolved this question as it has held that the Industrial Relations Act, 2012, was enacted within the legislative domain of the Parliament. Likewise, a Full Bench of" the Hon'ble Sindh High Court's through its unreported judgment delivered in Messrs Karachi Electric Supply Establishment NIRC and 3 others (Constitutional Petition No,D-2701) has declared "that the Industrial Relations Act, 2012, is a valid piece of legislation." Keeping in view the aforesaid precedents, there is no room to argue that the Industrial Relations Act, 2012, is ultra vires the Constitution or that the Majlis-e-Shoora (Parliament) lacked legislative competence to pass it.
4. Admittedly, the respondent Establishment is a trans-provincial establishment in terms of section 2(xxx) of the Industrial Relations Act, 2012, as it has its net-work of offices all over Pakistan. While deciding that it has no jurisdiction, the learned Labour Court has placed reliance on PTCL v.
Member NIRC and others (2014 SCM R 535) a case where a number of PTCL employees, whose services were terminated on 1-9-2010, had challenged their termination through a petition filed on 20-12-2010 before the Punjab Labour Court No,4, Faisalabad, under section 33 of the Punjab Industrial Relations Act, 2010 ("the PIRA 2010"), read with Standing Order 12(3) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 ("Standing Orders Ordinance"). Their petition was accepted by the Labour Court through its judgment dated 22-8-2011 in terms whereof PTCL was directed to reinstate the employees in service with back-benefits. The reinstated employees filed a contempt petition before the Labour Court under section 33(8) of the Punjab Industrial Relations Act, 2010, for the implementation of the Labour Court's judgment dated 22-8- 2011 but PTCL approached the NIRC for withdrawal of the petition. Through its order dated 26-1-2012, the NIRC withdrew and transferred to itself the contempt proceedings pending before the Labour Court. Against the NIRC's order dated 26-1-2012, the employees filed a writ petition which was accepted by the Hon'ble Lahore High Court through its judgment dated 26-11-2012 on the ground that the Labour Court and not the NIRC had jurisdiction in the matter. However, the Hon'ble High Court's judgment has been set aside by the Hon'ble Supreme Court in view of the provisions of sections 2(x), 2(xxx), 54(i) and 57(5) of the Industrial Relations Act, 2012, as the petitioner PTCL, having offices all over the country, is a trans-provincial establishment whose employees can agitate their individual grievances before the NIRC only. Being relevant, Para 12 of the honourable Supreme Court's judgment in PTCL v. Member NIRC and others, supra, is reproduced below:--- "After combined reading of the scheme of new labour laws, both Provincial and Federal, it may be concluded without any fear of rebuttal that two parallel forums have been created, one on a provincial basis whereas latter is federal level forum, called NIRC. Both these forums are having jurisdiction to deal with industrial disputes and unfair labour practice and other allied matters either attributable to the employer or the workers/ workmen, however, the Federal Law has drawn a clear demarcation line of jurisdiction of these two different forums, i,e, Labour Courts in the Provinces and the other NIRC at the Federl Level. 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 through 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."
5. The question that needs to be answered in the light of the Hon'ble Supreme Court's judgment in case titled PTCL v. Member NIRC and others, supra, is whether it applies to the controversy in hand or whether every aggrieved workman can maintain a petition before the NIRC under section 33 of the Industrial Relations Act, 2012. Of course, an aggrieved workman can approach the NIRC under section 33(4) of the IRA, 2012 so long as he is a workman as defined by section 2(xxxiii) ibid, reproduced below:--- "Worker" and "Workman" mean a person not falling within the definition of employer who is employed (including employment as a supervisor or as an apprentice) in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment be express or implied, and for the purpose of any proceedings under the Ordinance Ordinance in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid-off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay-off, or removal has led to that dispute but does not include any person who is employed mainly in managerial or administrative capacity."
6. In accordance with the aforesaid definition, every in-service workman is a workman while a former workman is to be regarded as a workman only if his services were terminated in connection with or as a consequence of an industrial dispute. Thus, a former workman, whose services were terminated not in connection with or as a consequence of an industrial dispute, is not a workman in terms of section 2(xxxiii) of the IRA, 2012. I may here refer to the Trustees of the Port of Karachi v.
Muhammad Saleem (1994 SCM R 2213) wherein the Hon'ble Supreme Court held that a dismissed employee was not a workman under section 2(xxviii) of IRO, 1969 (now section 2(xxxiii of the IRA, 2012) wherefor he could not maintain a petition under section 25-A of the IRO, 1969 (now section 33 of the IRA, 2012). Relevant paragraphs of the said judgment are quoted hereunder-- "22. Turning to the facts of this case, the parties were agreed that the respondent was, while he was still in the employment of the appellant, a worker for the purposes of section 25-A read with clause (xxviii) of section 2 of the Ordinance. There is also no question that the right conferred by section 25-A is not a common law right; it is a statutory right expressly conferred by section 25-A of the Ordinance. As in the case of any other statutory right, so here, in order to avail himself of that right, a person must fulfil the necessary conditions precedent to the exercise of that right. One such.
Condition here is that the person who claims that right must be a worker. By clause (xxviii) of section 2 of the Ordinance a worker is a person-
(a) who does not fall within the definition of employer;
(b) is employed in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment be express or implied. ' and includes for the purpose of any proceedings under the Ordinance in relation to industrial dispute a person who has been dismissed, discharged, retrenched, laid-off or otherwise removed from employment in connection with or as a on sequence of that dispute or whose dismissal, discharge, retrenchment, layoff, or removal has led to that dispute. Thus a person who has been dismissed, discharged, retrenched, laid-off or otherwise removed from employment is not a worker unless, his dismissal discharge etc. Had connection with or was in consequence of an industrial dispute or whose dismissal, discharge, had led to such a dispute. The words "for the purpose of any proceeding under this Ordinance show also that the definition of the expression 'worker' as contained in clause (xxviii) of section 2 of the Ordinance applies also to the proceedings under section 25-A of the Ordinance.
23. Here, it was not the case of the respondent before the Labour Court, before Labour Appellate Tribunal, before the High Court or before this Court that his dismissal, discharge etc. Was in any way related to an industrial dispute his was, therefore, a case of an individual dispute unrelated to an industrial dispute. We hold, therefore, that the respondent was not a worker for the purposes of section 25-A read with clause (xxviii) of section 2 of the Ordinance must follow inevitably that he was not entitled to the remedy provided by section 25-A of the Ordinance and that the Labour Court and the Appellate Labour Tribunal,' were, therefore; right in their view, that, remedy was not, available to him."
7. Again in Mustekhum Cement Limited through Managing Director v. Abdul Rashid and others (1998 SCMR 664), the Hon'ble Supreme Court held that a dismissed or terminated workman, being not a workman under section 2(xxviii) of the IRO, 1969, could not approach the Labour Court by virtue of section 25-A but could do so on the strength of Standing Order 12(3) as he was a workman in terms of section 2(i) of the Ordinance. Paras 9 and 10 of the said judgment, being relevant, are reproduced below:--- "9. The provisions of Standing Order 12(3), therefore, indicate that it allows right to a workman who is aggrieved by termination of his services or removal, retrenchment, discharge or dismissal to seek redress in accordance with the provisions of section 25-A of the Ordinance. The words "and thereupon, the provisions of the said section shall apply as they apply to the redress of an individual grievance" clearly indicate that for the purpose of redress of such grievance the procedural provisions of section 25-A have been extended to Standing Order 12(3) and the said provisions shall apply in the same manner as they would apply in case of an individual grievance referred to in the said section. It, therefore, clearly follows that right to seek redress has been made available to such workman, not through the force of section 25-A of the Ordinance but by extending the said provisions to Standing Order 12(3). However, the Legislature has provided for a different definition of the term "workman" in clause (i) of section 2 of the Standing Orders Ordinance, which provides as under:--- "workman" means any person employed in any industrial or commercial establishment to do any skilled or unskilled, manual or clerical work for hire or reward."
10. It is pertinent to notice that the two definitions of "workman", one provided in the Ordinance and the other provided in the Standing Orders Ordinance are completely different. The question which, therefore, arises is, which of the two definitions would be applicable in case, redress is sought by an aggrieved workman under Standing Orders 12(3). Since in the present case admittedly, the respondent's services were not terminated in connection with or in consequence of an industrial dispute, right to him to seek redress of his grievance was available only under Standing Order 12(3).
When redress was sought by the respondent under Standing Orders Ordinance, it is the definition of the term "workman" as provided in the Standing Orders Ordinance, which was to be considered by the Labour Court for entertaining his grievance petition and not the definition of the said term as contained in the Ordinance. We are fully fortified in our view by an earlier judgment of this Court in Syed Matloob Hassan v. Brooke Bond Pakistan Limited, Lahore (1992 SCM R 227). In this case, Ajmal Mian, J. (as he then was) had observed:--- "For example, if a workman seeks the enforcement of the rights guaranteed under the various provisions of the Standing Orders Ordinance, he should also fall within the definition of the 'workman' given in clause (i) of section 2 of the Ordinance.
' However, in case of termination of employment in violation of clause (3) of Standing Order 12 as pointed out hereinabove, it is sufficient that the workman concerned fills within the definition of the 'workman' given in clause (i) of section 2 of the Ordinance and he need not be covered by the definition of the 'workman' and 'worker' given in clause (xxviii) of section 2 of the Industrial Relations Ordinance."
8. It follows that the exclusive jurisdiction of the NIRC under section 33 of the IRA, 2012, is confined to the cases where a workman has a grievance while still in service or his grievance is that his services have been illegally terminated but in connection with or as a consequence of an industrial dispute. As such, a former workman, unless his services were terminated in connection with or as a consequence to an industrial dispute, cannot approach the NIRC tinder section 33(4) for the redress Of his grievance. However, Standing Order 12(3) provides a remedy to a workman aggrieved by his dismissal or termination which is neither in connection with nor as a consequence of an industrial dispute. Standing Order 12(3) is reproduced below:--- "(3) The services of a workman shall not be terminated, nor shall a workman be removed, retrenched, discharged or dismissed from service, except by an order in writing which, shall explicitly state the reason for the action taken. In case a ,workman is aggrieved by the termination of his services or removal, retrenchment, discharge or dismissal, he may [take action in accordance with the provisions of section 25-A of the Industrial Relations Ordinance, 1969 (XXIII of 1969), and thereupon the provisions of the said section shall apply as they apply to the redress of an individual grievance."
9. Standing Order 12(3) provides a remedy in case the services of a workman are terminated in violation of the rights or service safe-guards guaranteed by the Standing Orders Ordinance. The remedy provided by Standing Order 12(3) is an independent remedy which is not dependent on or, controlled by the provisions of the IRA, 2012, which are not at all relevant or applicable where a worker is dismissed or terminated neither in connection with nor as a consequence of an industrial dispute. There is also ample authority for the proposition that the provisions of IRA, 2012, being not applicable, do not bar the remedy against dismissal or termination provided under Standing Order 12(3). In this regard, I may refer to Security Papers Limited v. Sindh Labour Court No,4 and another (1981 PLC 898) where an employee of the Security Papers Limited had challenged his dismissal before the Labour Court but the Security Papers Limited had raised the objection that the Labour Court's jurisdiction stood ousted in view of section 1(3)(e) of the IRO, 1969. The Hon'ble Sindh High Court overruled the objection on the ground that the right/remedy provided under Standing Order 12(3) could not be taken away by implication considering that no corresponding amendment in Standing Order 12(3) had been made. In another case titled Mumtaz Ali v. Chairman N.-W.F.P.
Labour Appellate Tribunal and 2 others, the employees of the National Radio Tele-Communication Corporation, Haripur (1995 PLC 738), were dismissed from service. It was urged on behalf of the National Radio Tele-Communication Corporation that the Labour Court had no jurisdiction in view of section 1(3)(a) of the IRO, 1969, as the National Radio Tele-Communication Corporation was an organization connected with and incidental to the Armed Forces of Pakistan. This plea was rejected by the Peshawar High Court as it was of the view that Standing Order 12(3) specifically provided that a terminated or dismissed workman could take his grievance before the Labour Court.
Reference may also he made to Pak Arab Refinery Limited v. Muhammad Rasheed (1999 SCM R 373) where it was pleaded that the Labour Court had no jurisdiction in view of section 1(3)(g) of the IRO, 1969, as the aggrieved workman was employed as a watchman in an oil refinery. This argument was rejected on the ground that the remedy to have recourse to a Labour Court was provided by Standing Order 12(3) and any provision excluding the applicability of IRO, 1969 could not affect the remedy provided by virtue of Standing Order 12(3).
10. In the light of the preceding discussion, the legal position that emerges is that a workman, who is still in service of a trans-provincial establishment, can approach the 'NIRC under section 33 of the IRA, 2012, to redress any individual grievance. Such a workman may be aggrieved because he has not been regularized in service, his increment or promotion has been withheld, has been demoted or has been denied. Any right guaranteed or secured to him by or under any law or any award or settlement. A former workman of a trans-provincial establishment can also avail the remedy under section 33 of the IRA, 2012, to challenge the termination of, his services provided such termination is connected with or has resulted from an industrial dispute. However, a former workman of a trans- provincial establishment cannot challenge his termination under section 33 of the IRA, 2012, where his termination was not in connection with and in consequence of an industrial dispute. This is because he is not a workman as defined by section 2(xxxiii) of the IRA, 2012. Such an employee, however, can avail the remedy under Standing Order 12(3) if he is, as defined by in section 2(i) of the Standing Orders Ordinance, a person employed in manual or clerical work in an industrial or a commercial establishment even if it is a trans-provincial establishment. This is because a commercial or an industrial establishment, as defined in section 2(b) and section 2(f) of the Standing Orders Ordinance, has no territorial limits and includes a trans-provincial establishment.
The remedy provided by Standing. Order 12(3) allows a workman aggrieved by his termination to approach the Labour Court under section 33 of the Punjab Industrial Relations Act, 2010, even where he was employed in a trans-provincial establishment. Thus, in view of the provisions of Standing Order 12(3) read with section 2(i) of the Ordinance, a Labour Court has jurisdiction even if the terminated workman was employed in an industrial or commercial establishment which is a trans- provincial establishment as defined by the IRA, 2012. In the absence of necessary amendment in the Standing Orders Ordinance, it cannot be said that the NIRC has the exclusive jurisdiction where a workman of a trans-provincial establishment has been dismissed or his services have been terminated but not in connection with or in consequence of an industrial dispute. Nor does the Punjab Industrial and Commercial Employment (Standing Orders) (Amendment) Act, 2012 (XXI of '2012), expressly or by implication bar a Labour Court to adjudicate upon such a grievance of a workman employed in a trans provincial establishment. Viewed in this perspective, the Hon'ble Supreme Court's judgment can only be construed to mean that NIRC has exclusive jurisdiction to adjudicate upon all the individual grievances of a workman employed in a trans-provincial establishment provided he falls within the definition of a workman under section 2(xxxiii) of the IRA, 2012. It does not extend to cover a case where a workman files a grievance petition under Standing Order 12(3) before a Labour Court to challenge his termination which takes place not in connection with or as a consequence of an industrial dispute. It may be stated that the honourable Supreme Court actually decided that a Labour Court has no jurisdiction to adjudicate upon a contempt petition against a trans provincial establishment but the issue whether the Labour Court has jurisdiction to adjudicate upon a grievance petition by virtue of Standing. Order 12(3) was not part of the controversy before it In view thereof, the Hon'ble Supreme Court's judgment is distinguishable rather inapplicable to the facts of this case. In support, I may refer to the Trustees of the Port of Karachi v. Muhammad Saleem (1994 SCM R 2213) which approves the settled principle that a judgment is only an authority for what it actually decides and that it cannot be quoted for a proposition that may seem to follow logically from it. In this view of the matter, the learned Labour Court did not lose its jurisdiction to adjudicate upon the petitioner's grievance petition against his termination as his services were, admittedly, not terminated in connection with or in consequence of an industrial dispute.
11. As a sequel to the above discussion, I hold that the Learned Labour Court retained its jurisdiction to adjudicate upon the petitioner's grievance petition even after the enactment of the Industrial Relations Act, 2012. Resultantly, this revision, petition is allowed and the impugned order is set aside with a direction to the learned Labour Court to decide the grievance petition on merits in accordance with law.