The instant Misc. petition has been put up before this Bench with the order of Worthy Chairman for its judicial adjudication because earlier original petition was returned on 08-02-2017 due to lack of jurisdiction with the reason that jurisdiction of IRA, 2012 is not extended to Azad Kashmir having separate administration and government set up but the learned counsel for the petitioner prays for judicial determination of the cause through this C.M.A.
2. It is contended in the CM.A. that.there is no Bench of NIRC in Azad Kashmir so no remedial forum is available to the petitioner hence the petition may graciously be accepted and heard at NIRC Islamabad as National Bank of Pakistan is Trans-Provincial Establishment for which this Commission have exclusive jurisdiction.
3. Learned counsel for the petitioner argued that the petitioner is employee of National Bank of Pakistan which is a trans-provincial establishment of Pakistan having its office in all the provinces, FATA and outside the boundaries of the country and heavily relied on case law PLD 2009 SC 879 that the Courts must always endeavour to exercise their jurisdiction so that the rights of the people are guarded against arbitrary violations by the executive etc and he argued that NIRC according to its Section 55(3)(a) of the IRA, 2012 have jurisdiction to adjudicate and determine industrial dispute or any other matter which is referred to it or brought before it and according to provision of Section 1(3) of IRA, 2012 it shall apply to all persons employed in any establishment or industry, in the Islamabad Capital Territory or carrying on business in more than one province. Hence respondent establishment is trans-provincial by all means having its branches in more than one province and at the end prayed for the acceptance of this CM.A. and thereafter admitting the original petition for regular hearing in this Commission.
4. Arguments heard and file perused.
5. First of all I want to attend the jurisdiction of IRA, 2012 for which I deem it proper to reproduce the Section 1 clause (1),(2) &(3) which is as under: "1. Short title, extent, application and commencement,--
(1) This Act may be called the Industrial Relations Act, 2012.
(2) Subject to sub-section (3), it extends to the whole of Pakistan.
(3) It shall apply to all persons employed in any establishment or industry, in the Islamabad Capital Territory or carrying on business in more than one province, but shall not apply to any person employed--
(a) In the Police or any of the Defence Services of Pakistan or any services or installations exclusively connected with the Armed Forces of Pakistan including an Ordnance factory maintained by the Federal Government;
(b) In the administration of the state other than those employed as workmen;
(c) As a member of the Security Staff of the Pakistan International Airlines Corporation or drawing wages in pay group not lower that Group V in the establishment of that. Corporation as the Federal Government may, in the public interest or in the interest of security of the Airlines, by notification in the official Gazette, specify in this behalf;
(d) By the Pakistan Security Printing Corporation or the Security Papers Limited; and (e)by an establishment or institution for the treatment or care of sick, infirm, destitute or mentally unfit persons excluding those run on commercial basis.
(4) It shall come into force at once."
From the above reproduced provision of Section 1 sub-section (1), (2) & (3) there is no escape to this reality that applicability of IRA, 2012 extends to whole of Pakistan and it shall apply to all the persons employed in any establishment or industry, in the Islamabad Capital Territory or carrying on business in more than one province, but shall not apply to any person employed in Police or any of the Defence Service etc in the administration of the State, member of Security Staff of the PIAC or drawing wages in pay group not lower than Group V etc.
6. Through the instant petition the jurisdiction of NIRC has been invited for an employee who is serving in Grade-III in National Bank of Pakistan, Qamroth Supply Branch, Mirpur (A.K). Now the question does arise whether Azad Kashmir is province of Pakistan or not, for which, I seek guidance from Constitution of Islamic Republic of Pakistan (Tenth Edition, Amended upto 31st December, 2015, Government of Pakistan, Ministry of Law and Justice) and I want to reproduce Article 1(2) which is reproduced as follows: "1.(2) The territories of Pakistan shall comprise--
(a) The Provinces of Balochistan, the Khyber Pakhtunkhwa, the Punjab and Sindh;
(b) The Islamabad Capital Territory, hereinafter referred to as the Federal Capital;
(c) The Federally Administered Tribal Areas; and
(d) Such States and territories as are or may be included in Pakistan, whether by accession or otherwise.
From the perusal of above provision of Article 1(2) it is very much vivid that territory of Pakistan has been declared consisting of Provinces of Balochistan, Khyber Pakhtunkhwa, the Punjab and Sindh, Islamabad Capital Territory as Federal Capital, Federally Administered Tribal Areas and such States and territories those are included in Pakistan whether by accession or otherwise but vividly Azad Kashmir does not fall within the ambit of such territories, Azad Kashmir does not attain the status of a province of Pakistan. It is not Federally Administered Tribal Area, it is not State or territory included in Pakistan by accession or otherwise.
7. To further comprehensively articulate this situation I again get guidance from Article 257 of Constitution of Pakistan, which relates to State of Jammu and Kashmir and is reproduced as follows: "Article 257. When the people of the State of Jammu and Kashmir decide to accede to Pakistan, the relationship between Pakistan and that State shall be determined in accordance with the wishes of the people of that State".
From the bare perusal of above said Article 257 of Constitution of Pakistan the State of Jammu and Kashmir has been left to the option of people of State of Jammu and Kashmir to decide to accession of it to the Pakistan, the relationship between Pakistan and the State shall be determined in accordance with their wishes but admittedly the State of Jammu and Kashmir has not been up till now acquired the status of province of Pakistan by accession or otherwise. Jammu and Kashmir has its own set up of Government etc, further this question has already been dilated upon and analyzed by the Honourable Supreme Court of Azad Jammu & Kashmir in case law Commissioner Income-Tax, Azad Jammu and Kashmir, Muzzaffarabad versus Messrs Haji Ali Khan and Co. Forest Lessee Havelian PLD 1964 S. C. 456. The relevant paragraph is reproduced as follows: "(b) Constitution of Pakistan (1973)-- Art. 1-Territories of Pakistan-Foreign territory-Definition-Azad Kashmir territory did not constitute a part of Republic of Pakistan and was a foreign territory under Constitution-Azad Jammu and Kashmir Government for all practical purposes has all the constitutional features of a Government".
In the light of above referred paragraph of the judgment of Honourable Supreme Court of AJ&K there is no denial and escape to this reality that Apex Court of Azad Kashmir has held that Azad Kashmir does not constitute a part of Pakistan and was a foreign territory under the Constitution and Azad Jammu and Kashmir Government for all practical purposes has all the constitutional features of Government so Azad Kashmir has its own set up of Government and Judiciary etc.
8. Moreover it is pertinent to mention that Islamabad Capital Territory is not a part of any province as it has been held in case law Hashwani Hotels Ltd., Karachi versus Government of the Punjab and another PLD 1981 Lahore 211, the relevant paragraph is reproduced as follows: "14. According to the 1973 Constitution, the Islamabad Capital Territory is not a part of the Province of Punjab. The Provincial Legislature, therefore, cannot legislate about it in view of Article 141. The Parliament, on the other hand, has the exclusive power under Article 142(d) to make laws with respect to matters not enumerated in either lists for such areas in the Federation as are not included in any Province. Article 77 lays down that no tax shall be levied except by or under the authority of Act of Parliament."
Consequent to above discussion of law it can very easily be concluded that Azad Jammu & Kashmir has not status of province of Pakistan, so Industrial Relations Act, 2012 is not applicable because of the fact that it is applicable to all persons employed in any establishment or industry in the Islamabad Capital Territory or carrying on business in more than one province and consequently the NIRC has no jurisdiction to entertain the case pertains to AJ&K.
9. The case law referred above relied by learned counsel for the petitioner is not helpful to him because in all the cases invariably the jurisdiction of NIRC has been calculated on the industrial and commercial establishments having its Head office at Islamabad or also trans-provincial.
In the eventuality of this discussion the instant Misc. petition is hereby dismissed holding that the main petition is not maintainable before this Commission. File be consigned to record room after codal formalities. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.