MUHAMMAD SAJID MEHMOOD SETHI, J. This single judgment shall dispose of instant writ petition alongwith following connected writ petition, as common questions of law and facts are involved in these petitions:- W.P. No, 6148 of 2015 titled Sui Northern Gas Pipelines Limited v. Member, Punjab Labour Appellate Tribunal, etc.
2. Brief facts of the case are that petitioner was working as Pipe Fitter in Sui Northern Gas Pipelines Limited ("SNGPL"). He was served with two charge-sheets dated 1/2.06.1999 and 27.09.1999. First charge-sheet was based on the allegation of absence from duty w,e,f, 19.05.1999 and in second charge-sheet it was alleged that petition& visited the Regional Office in drunken condition and used abusive language against one Arif Mehmood and damaged his car. Ultimately, petitioner was dismissed from service in February, 2000. Petitioner filed appeal before Federal Service Tribunal, which was accepted vide judgment dated 06.07.2005 and impugned order of petitioner's dismissal was set aside and matter was remanded to the competent authority for decision afresh.
Thereafter, matter was revisited and penalty of down gradation from Grade-VI to Grade-V w,e,f, 22.02.2000 was imposed upon the petitioner, vide order dated 09.03.2006. Feeling aggrieved, said order was assailed in departmental appeal, but said order was upheld in appeal and petitioner was compelled to file appeal before Federal Service Tribunal but, in view of judgment of Hon'ble Supreme Court of Pakistan in Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others (PLD 2006 Supreme Court 602), learned Tribunal abated the petitioner's appeal. However, keeping in view the provisions of Section 46 of Industrial Relations Ordinance, 2002 ("IRO, 2002"), the petitioner also served a grievance notice to respondents as a matter of pre-caution and filed grievance petition before learned Punjab Labour Court No, I, Lahore ("Labour Court"), which was decided in favor of petitioner vide judgment dated 28.06.2011, whereby petitioner was reinstated in service with all back benefits. SNGPL assailed said judgment before learned Punjab Labour Appellate Tribunal, Lahore ("PLAT") by filing appeal, which was accepted vide judgment dated 10.10.2014 and judgment of Labour Court was modified to the extent that petitioner was held not entitled to receive any back benefits for the period he remained out of service. Through the instant petition, aforesaid judgment dated 10.10.2014 passed by PLAT has been assailed, with the following prayer:- "In view of the above submissions it is most respectfully prayed that the impugned judgment dated 10.10.2014 passed by learned Appellate Tribunal may kindly be set aside and well-reasoned judgment dated 28.06.2011 passed by Punjab Labour Court No, 1, Lahore may kindly be restored."
3. In the connected writ petition i,e, W.P. No, 6148 of 2015 titled Sui Northern Gas Pipelines Limited v.
Member, Punjab Labour Appellate Tribunal, etc. The petitioner/SNGPL has prayed as under:--- "In view of the above it is prayed that the impugned judgments may be declared as against the law and facts borne on record and may be declared as not just and proper", requiring Labour Court's judgment to be set aside in toto and that of PLAT too except denial of back benefits. The charges contained in the charge-sheet dated--duly proved may be held as proper, declaring the respondent No, 3 as guilty of the charges committed by him."
4. Learned counsel for petitioner submits that while passing the impugned judgment, PLAT has not properly appreciated the points of law and facts involved in the case, so the impugned judgment to the extent of denial of back benefits to petitioner is bad at law. He adds that petitioner, in his grievance petition, affidavit, grievance notices dated 29.08.2006 and 30.08.2006, clearly mentioned that he was 'jobless' but this important fact escaped the notice of PLAT. He further submits that in circumstances impugned judgment is based on mis-reading and non-reading of evidence brought on record.
5. On the other hand, learned counsel for respondents submits that judgment passed by learned Labour Court is absolutely without jurisdiction as it had no jurisdiction to entertain and adjudicate upon grievance petition of the petitioner. He adds that claim of back benefits has rightly been denied by PLAT. In support of his contentions, learned counsel placed reliance on case-law reported as Commissioner of Income Tax v. Messrs Eli Lilly Pakistan (Pvt.) Ltd. (2009 SCMR 1279) and Messrs Rasheed CNG Station through Proprietor v. Federation of Pakistan and 6 others (2015 CLC 945).
6. Arguments heard and available record perused.
7. The operative part of impugned judgment is reproduced as under:- "13. Finally, it needs to be seen if the impugned judgment can be sustained insofar as it awards back benefits to the respondent for the period he remained out of service. It is settled law that a dismissed workman cannot claim such back benefits unless he asserts in his evidence that he had remained Unemployed during the intervening period. A perusal of the evidence particularly respondent's affidavit in evidence (Ex.P-1) does not show any assertion by the respondent that he remained jobless during the intervening period. In the circumstances, the respondent cannot be awarded back benefits for the period he remained out of service."
8. The above reproduced part of the impugned judgment shows that learned Punjab Labour Appellate Tribunal has reversed the findings of learned Labour Court with regard to grant of back benefits on the ground that the petitioner did not assert in evidence that he remained unemployed during the intervening period. Examination of the record reveals that petitioner has specifically mentioned in his grievance notices and grievance petition before Labour Court supported by affidavit that he was jobless but it has been argued that PLAT failed to consider this important aspect of the matter while passing impugned judgment. Record further shows that petitioner mentioned in the prayer of his grievance petition that he remained 'jobless'.
9. It is obvious from the record that petitioner served grievance notice under Section 46 of IRO, 2002 and, thereafter, filed grievance petition before the learned Labour Court which was accepted vide order dated 28.06.2011. The proceedings were initiated long before the promulgation of Industrial Relations Act, 2012 ("IRA, 2012"). Industrial Relations Ordinance, 2011 ("IRO, 2011") was also promulgated after the decision dated 28.06.2011 passed by Labour Court, so it never affected the grievance petition of the petitioner. Industrial Relations Act, 2008 ("IRA, 2008") and IRO, 2011 were repealed, so petitioner's petition was rightly decided by the Labour Court having jurisdiction under law and that is a valid judgment.
10. Record shows that the respondent filed appeal in the year 2011 i,e, before promulgation of IRA, 2012 on 14.03.2012 and PLAT decided the appeal on 10.10.2014 i,e, after promulgation of IRA, 2012.
Although no objection of jurisdiction was ever raised by SNGPL during the appellate proceedings and even while filing comments in instant petition. SNGPL has also not taken this plea in its writ petition No, 6148 of 2015, but the question of jurisdiction can be determined by this Court even at this stage.
11. Learned counsel for the petitioner has argued that action started by a person has to be completed under the same law even if it has been repealed during pendency of action unless new law has saved the pending proceedings. Suffice it to say that provisions of Section 57 of the IRA, 2012 specifically provides that PLAT cannot take any action or entertain any proceedings in respect of any matter which falls under the jurisdiction of National Industrial Relations Commission.
Relevant portions of Section 57 of the IRA, 2012, are reproduced below for ready reference:--- "57. Additional powers of the Commission.--(1).
(a) ..............
(b) ..............
(2) The Commission may, on the application of a party, or of its own motion, ---
(a) ..............
(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) ..............
(3) ..............
(a) ..............
(b) ..............
(c) ..............
(4) ..............
(5) Save as provided in sub-section (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."
12. From bare perusal of Section 57 of IRA, 2012, it becomes clear that PLAT was divested of jurisdiction under Section 57(5) of IRA, 2012. PLAT was created under Punjab Industrial Relations Act, 2010 ("PIRA, 2010"), and the Hon'ble Supreme Court of Pakistan, in the case of Pakistan Telecommunication Company Ltd. v. Member NIRC and others (2014 SCMR 535), has held that all the provincial labour laws have to yield to the Federal Law i,e, IRA, 2012.
13. In view of the above discussion, it can safely be concluded that after promulgation of IRA, 2012, PLAT had no jurisdiction to decide the appeal in respect of matter which falls within the jurisdiction of the Commission. However, judgment dated 28.06.2011 passed by the Labour Court on grievance petition of the petitioner is a valid judgment and is saved under Section 88 of the IRA, 2012 which provides that an order issued or other actions taken under the repealed Act shall be deemed to have been done under the corresponding provisions of this Act. The provisions of Section 88 of the IRA, 2012 reads as under:- "88. Repeal and savings.---The Industrial Relations Act, 2008 (IV of 2008), having been repealed by virtue of sub-section (3) of Section 87 thereof, notwithstanding the repeal of the said Act, hereinafter to be called the repealed Act, and without prejudice to the provisions of Sections 6 and 24 of the General Clauses Act, 1897 (X of 1897)---
(a) every trade union of an .Establishment or industry located in the Islamabad Capital Territory, or in more than one Province and existing immediately before the commencement of this Act, which was registered under the repealed Act shall be deemed to be registered under this Act and its constitution shall continue in force until altered or rescinded;
(b) anything done, rules made, notification or order issued, officer appointed Court constituted, notice given, proceedings commenced or other actions taken under the repealed Act shall be deemed to have been done, made, issued, appointed, constituted, given, commenced or taken, as the case may be, under the corresponding provisions of this Act; and
(c) any document referring to the repealed Act relating to industrial relations shall be construed as referring to the corresponding provisions of this Act."
14. The other argument of learned counsel for respondents is that learned PLAT erred in deciding the appeal on merit, as the only option before it was to abate the appeal as per, judgments of Hon'ble apex Court reported as Muhammad Mubeen-us-Salam and others (supra) and Muhammad Idrees v. Agricultural Development Bank of Pakistan and others (PLD 2007 Supreme Court 681), in which it was held that on change of forum, the appeals pending before the Appellate Court stand abated with the result that judgment of.Lower Court also abated. In support of his contention, he has also placed reliance upon G.M., National Bank of Pakistan and others v. Abdul Aziz and others (PLD 2002 Supreme Court 346). As observed in preceding paragraphs of this judgment, order passed by the Labour Court is protected in view of the saving clause contained in Section 88 of the IRA, 2012. It is nowhere mentioned in IRA, 2012, that previous decisions passed by Labour Courts are illegal or ultra vires. The judgment passed in the case of Pakistan Telecommunication Company Ltd. (supra), has no retrospective effect, rather it has prospective effect, so all legal decisions given by legally constituted Courts or Tribunals are saved and are legally binding on the parties concerned subject to their final outcome in appeals or proceedings to be decided by the competent forum. Reference in this regard can be made to case-law reported as Khuda Bakhsh and 4 others v. Dr. Peer Muhammad Khan and another (1997 CLC 1114), Emirate Bank International v. Messrs United Group of Companies (1998 CLC 743), Independent NewspaperCorporation (Pvt.) Limited, Karachi through Manager, Daily Jang, Quetta v. The Chairman of Implementation Tribunal of Newspaper Employees (Labour Wing), C.D.A., Islamabad and 2 others (1998 PLC (Labour) 196), Sarfraz v. Muhammad Aslam Khan and another (2001 SCMR 1062), Baidullah Jan and 3 others v. Hawas Khan and 11 others (PLD 2002 Peshawar 92) and Muhammad Rasheed and others v. Government of Pakistan, Ministry of Commerce (National Tariff Commission) through Chairman and others (2006 PLC (CS) 122).
15. In view of what has been discussed and observed above, instant petition is allowed. Resultantly, impugned judgment dated 10.10.2014 passed by learned Punjab Labour Appellate Tribunal is set aside and the matter is remitted to the learned Punjab Appellate Tribunal to transmit the appeal to competent forum for its decision under Industrial Relations Act, 2012. Consequently, connected petition bearing W.P.No, 6148 of 2015 stands disposed of in the above terms.