ALI SAIN DINO METLO, MEMBER.--- The appellant has challenged order, dated 15th April 2017, of the Sindh Labour Court No,05, Karachi, returning him his application for reinstatement in service for presentation before the competent forum i,e, the National Industrial Relations Commission (NIRC).
2. Briefly, the facts are that on 30th December, 2016, the appellant, claiming, to be a permanent worker of the respondent, filed application, No,47 of 2016, under Section 34 of the Sindh Industrial Relations Act, 2013 (SIRA), read with Standing Order 16(3) of the Sindh Terms of Employment (Standing Orders) Act, 2015 (Sindh Standing Orders Act), in the Labour Court for reinstatement in service with back benefits, contending that on 03rd August, 2016, the respondent had terminated his services without explicit reason in violation of Standing Order 16(3) of the Sindh Standing Orders Act.
3. On respondent's application, the labour court, under the impugned order, returned the application to the appellant for presentation before the NIRC on the ground that the respondent was a trans-provincial establishment as it had a campus at Islamabad.
4. Learned counsel for the appellant argued that the appellant was removed from service without any explicit reason in violation of Standing Order 16(3) and not in connection with any industrial dispute and, therefore, the Industrial Relations Act, 2012 (IRA) was not applicable and the NIRC established under IRA had no jurisdiction. According to him, the labour court had the exclusive jurisdiction to decide cases relating to removal of workers in violation of Standing Order 16(3).
5. 'Learned counsel for the respondent argued that the appellant, while admitting that the respondent had a Campus at Islamabad, had consented for returning the application for presentation before the NIRC.
6. As for the legal position, before eighteenth constitutional amendment, made on 19th April, 2010, subjects of welfare of labour, conditions of labour, provident funds, employee's liability, workmen's compensation, health insurance, including invalidity pensions, old age pensions, trade unions, industrial and labour disputes, in other words all labour related subjects, were in the concurrent legislative list at entries 26 and 27. By the amendment, the concurrent list was omitted and the powers were devolved to the Provinces. All the labour related subjects became Provincial subject.
7. Before the amendment, most of the labour related laws were federal. However, after the amendment, the provinces have made their own laws and have repealed the federal laws to the extent of their applicability to their respective provinces.
8. On 14th March, 2012, parliament enacted Industrial Relations Act, 2012 (IRA) and made it applicable to establishments situated in Islamabad Capital Territory and also to trans-provincial establishments i,e, establishments having branches in more than one province. A Full Bench of the High Court of Sindh upheld the law mainly on the ground that it catered for the fulfillment of fundamental right guaranteed under Article 17 of the Constitution and provided for formation and registration of industry-wise trade unions for the establishments having branches in more than one province (KESC v. NIRC 2015 PLC 1). The cases with regard to industrial disputes in respect of trans-provincial establishments were directed to be sent to the B NIRC established under IRA.
9. The Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, guaranteed certain minimum rights to the workers employed in industrial and commercial establishments and provided remedy against wrongful removal from service. However, the Ordinance did not make any distinction between intra-provincial and trans-provincial establishments.
10.The Sindh Terms of Employment (Standing Orders) Act, 2015 (Sindh Standing Orders Act) has repealed the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, (Standing Orders Ordinance) to the extent of its application to the province of Sindh. Therefore, remedy against removal of a worker in violation of the Sindh Standing Orders Act, shall lie under the Sindh Standing Orders Act, which provides that the action shall be taken in accordance with the provisions of section 34 of the Sindh Industrial Relations Act, 2013 (SIRA).
11.Under SIRA or IRA, a worker means a worker in employment and includes a worker who has been removed from employment in connection with or as a consequence of an industrial dispute or whose removal has led to an industrial dispute. Therefore, under Section 34 SIRA or Section 33 IRA, only a worker who is in employment or who has been removed from employment in connection with or in consequence of an industrial dispute or whose removal has led to an industrial dispute can seek redressal of his grievance. According to the appellant, he has been removed from employment not in connection with or in consequence of any industrial dispute and his removal from employment has not led to any industrial dispute. Learned counsel for the respondent admitted that the appellant was not removed from employment in connection with any industrial dispute. It is, therefore, clear that the appellant is not a worker as defined under SIRA or IRA.
12. By employing drafting technique of legislation by reference or incorporation through which material expressed elsewhere is made part of the text without reproducing it, Section 34 of the SIRA has been adopted or made part of the Sindh Standing Orders Act.
13.For the purpose of seeking remedy under the Sindh Standing Orders Act, it is necessary that the Sindh Standing Orders Act be applicable. It is not necessary that SIRA, of which Section 34 has been referred to and made part of the Sindh Standing Orders Act, be also applicable. For this reference may be made to the cases of Mustehkum Cement Limited v. Abdul Rashid and others (1998 SCM R 644) and Pak Arab Refinery Limited v. Muhammad Rashid (1999 SCM R 373). In these cases the Hon'ble Supreme Court has held that procedural provisions of Section 25-A of the Industrial Relations Ordinance, 1969, referred to in the Standing Order 12(3), were applicable not through the force of Section 25-A of the Ordinance but by extending the said provisions to the Standing Order 12(3)' and that a workman, as defined in the Standing Orders Ordinance, could seek his remedy against his Removal from service in violation of the Standing Orders, even if the Industrial Relations Ordinance, 1969, was not applicable to him.
14.As for the judgment of the full bench of the High Court of Sindh in the case of KESC v. NIRC (2015 PLC 1) is concerned, it is not applicable to this case as it does not relate to formation of any trade union or settlement of any industrial dispute. The last lines of paragraph 29 read with last lines of the last paragraph 30 of the judgment make it clear that only cases with regard to settlement of industrial disputes pertaining to trans-provincial establishments were meant and directed to be sent to the NIRC under the IRA, which has nothing to do with cases of workers' removed in violation of the Sindh Standing Orders Act.
15. As for the consent of the appellant for returning the application for presentation before the labour court is concerned, it may be mentioned that consent of parties can neither confer upon nor take away jurisdiction from any forum. The question of jurisdiction has to be decided on the basis of law and not on the basis of consent of the parties.
16 Since the appellant had claimed that he has been removed from employment without any explicit reason in violation of Standing Order 16(3) and not in connection with any industrial dispute, the law applicable will be the Sindh Standing Orders Act, read with section 34, SIRA, under which jurisdiction lies with the labour court. The IRA is not applicable and the NIRC has no jurisdiction.
Accordingly, the appeal is allowed, the order of the labour court is set aside, the labour court is directed to proceed with and dispose of the case according to law.