JAWAD HASSAN, J.- Through this petition, filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution"), the Petitioner/Employees Old-Age Benefit Institution has challenged the validity of orders dated 15.02.2017 and 17.05.2017 passed by the Respondent No.1/ Punjab Labour Court No.5, Sargodha whereby the petition filed by the Respondent No.2 was accepted (15.02.2017) and the revision there-against filed by the Petitioner (17.05.2017) was dismissed.
BRIEF F ACTS
2. The facts succinctly revealed from the petition are that the Petitioner was established by the Federal Government in exercise of powers conferred on it under Section 4(1) of the Emplo yees Old Age Benefit Act, 1976 (the "Act of 1976"). The Act of 1976 was promulgated to grant old age benefits to employees of industries and other establishments subject to the eligibility criteria prescribed in the Act of 1976.
3. The Respondent No.2 who was the employee of Sally Textile Mills? Jauharabad from 08.08.1983 to 15.05.1991, applied to the Petitioner for old age pension under the Act of 1976 by giving his date of birth as 08.08.1943. Since his length of service was less than 15 years, he tried to take refuge under Section 22(2) of the Act of 1976 whereupon the Regional Claims Committee (the "Committee") of the Petitioner considered the case of the Respondent No.2 but found his date of birth as 08.08.1953 instead of 08.08.1943, therefore, refused his claim.
Feeling dissatisfied from the decision of the Committee, the Respondent No.2 filed a petition under Section 33 of the Act of 1976 which was decided in his favour vide order dated 21.09.2010 by considering his date of birth as 28.06.1949. In compliance thereof the Petitioner considered the date of birth of the Respondent No.2 as 28.06.1949 but vide order dated 22.09.2010 still found him ineligible for old age pension on account of failing to meet the eligibility criteria as prescribed under Section 22 of the Act of 1976. Against which the Respondent No.2 filed review petition which was also accepted vide order dated 28.05.2012. Resultantly , the case of the Respondent No.2 was re-examined by the Petitione r in the light of the above referred order and it was informed to the Respondent No.2 that no case for grant of old age pension was made out as he did not complete mandatory 15 years length of service and he had alrea dy received the old age grant, as such he is not entitled to any further benefits under the Act of 1976.
4. Feeling aggrieved thereby , the Respondent No.2 invoked the jurisdiction of the Respondent No.1 by way of grievance petition in which reply was filed by the Petitioner but the same was accepted by the Respondent No.1 vide order dated 15.02.2017 against which the Petitioner filed review petition which was dismissed vide order dated 17.05.2017. Hence, this petition.
SUBMISSIONS OF THE PETITIONER'S COUNSEL
5. Mr. Hfeez Saeed Akhtar, appearing on behalf of the Petitioner, inter alia submitted that the Respondent No.1- Labour Court No.5, Sarogdha had no jurisdiction to deal with matter in hand, as such the impugned orders are without any jurisdiction and therefore, liable to be set aside on this score alone; that while passing the impugned orders, the Respondent No.1 has not considered the fact that under the Act of 1976 the remedy of Appeal was provided to the Respondent No.2 and therefore, the Respondent No.1 cannot step into the shoes of Appellate Authority; that the Respondent No.2 was never remained the employee of the Petitioner rather was the employee of one Sally Textile Mills? and his claim was rightly declined due to not fulfilling the eligibility criteria under the Act of 1976; that the Respondent No.2 was seeking pension under the Act of 1976 and not the Punjab Industrial Relations Act, 2010 (the "Act of 2010"), as such the Respondent No.1 was not obliged to extend any relief to the Respondent No.2; that the Respondent No.2 was not falling within the definition of a workman, therefore, he was not entitled to get any relief from the Respondent No.1; that the petition before the Respondent No.1 was not maintainable in presence of specific remedy of Appeal provided under the Act of 1976. To fortify his contentions learned counsel for the Petitioner has placed reliance on the case titled Employees Old-Age Benefits Institution, Rawalpindi and another v. Ejaz Ahmad (1988 PLC (C.S.) 261), Abdul Rashid Malik and others v. General Manager , Pakistan Railways and others (1992 PLC 1116), Zahid Majid v. Labour Officer and Inspector of Factories, Sukkur and 3 others (1988 PLC 914) and Sardar Sultan Ahmad Khan v. Governm ent of Punjab through Project Director , Department of Agriculture Punjab, Lahore and 4 others (2001 MLD 1013 ). Learned counsel for the Petitioner also submitted that if the proceedings and the order passed therein are without jurisdiction, there is no legal requirement to avail of the alternate remedy by way of an Appeal. In support of his above submission he has referred to the cases titled Pakistan and another v. Qazi Ziauddin (PLD 1962 SC 440), Nagina Silk Mill, Lyallpur v. The Income-tax Officer A-Ward, Lyallpur (PLD1963SC322) and The Murree Brewery Co. Ltd v. Pakistan through the Secretary Government of Pakistan Works Division and 2 others (PLD I 972 SC 279) and Sky Rooms Ltd. Karachi v. Assistant Collector of Central Excise & land Customs Karachi (PLD 1982 Kar . 244 ).
SUBMISSIONS OF LA W OFFICER
6. Sadia Malik, Assistant Attorney-General also assisted the Court by submitting that in presence of a specific remedy under the law, the Respondent No.1 should not have exercised its jurisdiction which tantamounts to bypassing and superseding the Authority provided under the Statute; that in the past this Court as well as the Hon? ble Supreme Court of Pakistan have discouraged such like exercising of powers; that the orders of the Respondent No.1 are liable to be set aside because under the Act of 1976 the remedy of Appeal was available to the Respondent No.2.
SUBMISSIONS OF RESPONDENT'S COUNSEL
7. Mr. M. R. Awan, Advocate for the Respondent No.2 has vehemently controverted the arguments advanced by the learned counsel for the Petitioner as well as the learned Law Officer and prayed for dismissal of the instant petition on the grounds that the impugned orders have rightly been passed; that the impugned orders are well within reasons, therefore, liable to be implemented forthwith.
8. I have heard the arguments at length and perused the record minutely .
MOOT POINTS
9. For the just determination of the case, keeping in view the facts, arguments of both the parties as well as the law on the point, this Court deems appropriate to frame constitutional moot points which are as follows: i. Whether the Respondent No.1 (Labour Court) can entertain the grievance petition filed by the Respondent No.2 (employee) in presence of statutory remedy of Appeal provided under Section 35 of the Act of 1976? ii. Whether the Respondent No.1 has the jurisdiction to entertain the grievance petition filed by the Respondent No.2 under the Act of 2010? iii. Whether the instant petition is maintainable as the remedy of Appeal was not availed by the Petitioner before the Punjab Labour Appellate T ribunal against the orders of Labour Court?
10. To thrash out the above framed constitutional moot points, this Court has minutely examined the available record and also taken into consideration the anxious arguments advanced by both the sides and case law on the point.
11. Under Article 38 of the Constitution it is the duty of the State inter alia to provide for all persons employed in the service of Pakistan or otherwise, social security by compulsory social insurance or other means. For the sake of brevity , the said Article is reproduced below and is as follows: "38. Promotion of social and economic well being of the people:- The State shall-
(a) secure the well-being of the people, irrespective of sex, caste, creed or race, by raising their standard of living, by preventing the concentration of wealth and means of production And distribution in the hands of a few to the detriment of general interest and by ensuring equitable adjustment of rights between employers and employees, and landlords and tenants.
(b) provide for all citizens, within the available resources of the country , facilities for work and adequate livelihood with reasonable rest and leisure.
(c) provide for all persons employed in the service of Pakistan or otherwise, social security by compulsory social insurance or other means .
(d) provide basic necessities of life, such as food, clothing, housing, education and medical relief, for all such citizens, irrespective of sex, caste, creed or race, as are permanently or temporarily unable to earn their livelihood on account of infirmity , sickness or unemployment.
(e) reduce disparity in the income and earnings of individuals, including persons in the various classes of the service of Pakistan.
(f) eliminate riba as early as possible; and
(g) ensure that the shares of the Provinces in all Federal services, including autonomous bodies and corporations established by, or under the control of, the Federal Government, shall be secured and any omission in the allocation of the shares of the Provinces in the past shall be rectified. "
12. The Act of 1976 was enforced with effect from April 1, 1976, to achieve the objective of Article 38 (c) of the Constitution, by providing for compulsory social insurance. It extends the Old-Age Benefits to insured persons or their survivors. Under EOB Scheme, Insured Persons are entitled to avail benefit like, Old-Age Pension (on the event of retirement), Invalidity Pension (in case of permanent disability), Old-A ge Grant (an Insured Person attained superannuation age, but does not possess the minimum threshold for pension) Survivor's Pension (in case an Insured Person is expired). EOBI does not receive any financial assistance from the Government for carrying out its Operations. A contribution equal to 5% of minimum wages has to be paid by the Employers of all the Industrial and Commercial Organizations where the Act of 1976 is applicable. Further , the contribution is payable by an insured person at the rate of one percent of the wages in prescribed manners.
ALTERNA TE REMEDY i. Whether the Respondent No.1 (Labour Court) can entertain the grieva nce petition filed by the Respondent No.2 (employee) in presence of statutory remedy of Appeal provided under Section 35 of the Act of 1976?
13. It is the specific stance of the learned counsel for the Petitioner that against the two orders of the Adjudicating Authority , the Respondent No.2 had the alternate remedy by way of filing Appeal under Section 35 of the Act of 1976. For the ready reference, the said Section is reproduced below: "35. Appeal to Board. Subject to rules, a person aggrieved by a decision of the Institution under section 33 or on a review under section 34, may appeal to the Board. "
14. From the above reproduced Section, it is crystal clear that against the decision of the Institution a remedy of Appeal is provided. The record reveals that after the denial of Respondent No.2?s claim by the Regional Claim Committee of the Petitioner , a petition under Section 33 of the Act of 1976 was filed by the Petitioner which was decided on 21.09.2010 and it was held that the correct date of birth of the Petitioner be read as 28.06.1949 and directed the Petitioner to allow the Respondent No.2 due benefits as per provisions of the Act of 1976. In pursuance of which the Petitioner considered the case of the Respondent No.2 and still found him ineligible for old- age pension on account of failing to meet the eligibility criteria prescribed in Section 22 of the Act of 1976. The Respondent No.2 filed review petition which was decided on 28.05.2012 reiterating the decision of the Adjudicating Authority . In compliance thereof the Petitioner again re-examined his case and found that no case for grant of old- age pension was made out. Against the said orders of the Adjudicating Authority , the remedy available to the Respondent No.2 was Appeal under Section 35 of the Act of 1976 but the Respondent No.2 filed grievance petition before the Labour Court which decided the matter. The act of the Respondent No.2, bypassing the statutory remedy available to him under Section 35 of the Act of 1976, is not justified and cannot be rescued by this Court. It is the settled view of the Hon?ble Supreme Court of Pakistan that where there is alternate remedy available to a person, he cannot be allowed to supersede or skip the same but subject to some reasonable exception viz, until the exercise of powers is without jurisdiction. Moreover, the reasons advanced by learned counsel for the Petitioner for not filing the Appeal are not persuasive as nobody can be allowed to bypass any provision of law and the procedure laid down for a particular purpose. ii. Whether the Respondent No.1 has the jurisdiction to entertain the grievance petition filed by the Respondent No.2 under the Act of 2010?
15. Now I would like to render my findings on the above moot point whether the Respondent No.1/the Punjab Labour Court, No.5, Sargodha had the jurisdiction to exercise its powers against the orders of the Adjudicating Authorities or not. The Respondent No.1 constituted under the Act of 2010 and its preamble enshrines that whereas it is expedient to regulate (i) formation of trade unions and trade union activities, (ii) relations between employers and workmen and (iii) the avoidance and settlement of any differences or disputes arising between them and ancillary matters. The Labour Court established under Section 44 of the Act of 2010 which reads as follows:
44. Labour Court. - (1) The Government may, by notification in the official Gazette, establish as many Labour Courts as it considers necessary and, where it establishes more than one Labour Court, shall specify in the notification the territorial limits within which or the industries or classes of cases in respect of which, each one of them shall exercise jurisdiction under this Act.
(2) A Labour Court shall consist of one presiding officer appointed by the Government.
(3) A person shall not be qualified for appointment as presiding officer unless he has been or is a District Judge or an Additional District Judge.
(4) A Labour Court shall-
(a) adjudicate and determine an industrial dispute which has been referred to, or brought before it under the Act;
(b) enquire into and adjudicate any matter relating to the implementation or violation of a settlement which is referred to it by the Government;
(c) try offences under the Act and such other offences under any other law as the Government may, by notification in the official Gazette, specify in this behalf;
(d) try offences punishable under section 64;
(e) to deal with cases of unfair labour practices specified in sections 17 and 18 on the part of employers, workers, trade unions, of either of them or perso ns acting on behalf of any of them, whether committed individually or collectively , in the manner laid down under section 33 or section 42 or in such other way;
(f) exercise and perform such other powers and functions as are or may be conferred upon or assigned to it by or under the Act or any other law; and
(g) grant such relief as it may deem fit including an interim relief.
(4) An interim order passed by a Labour Court shall stand vacated on the expiration of twenty days unless, for reasons to be recorded in writing, it is, from time to time for a period not exceeding twenty days, extended by the Labour Court.
Similarly , the Labour Court exercises its powers under Section 45 of the Act of 2010 which reads as follows:
45. Procedure and powers of Labour Court. - (1) Subject to the provisions of this Act, while trying an offence, a Labour Court shall follow as nearly as possible summary procedure as prescribed under the Code of Criminal Procedure, 1898 (V of 1898).
(2) A Labour Court shall, for the purpose of adjudicating and determining any industrial dispute, be deemed to be a Civil Court and shall have the same powe rs as are vested in such Court under the Code of Civil Procedure, 1908 (V of 1908), including the powers of -
(a) enforcing the attendance of any person and examining him on oath;
(b) compelling the production of documents and material objects; and
(c) issuing commissions for the examination of witnesses or documents.
(3) A Labour Court shall, for the purpose of trying an offence under the Act or the Industrial and Commercial Employment (Standing Orders) Ordinance , 1968 (VI of 1968), have the same powers as are vested in the Court of a Magistrate of the first class empowered under section 30 of the Code of Criminal Procedure, 1898 (V of 1898).
(4) No court fee shall be payable for filing, exhibiting or recording any document in a Labour Court.
(5) If the parties to a case, at any time before a final order is passed by the Labour Court, satisfy the Labour Court that the matter has been resolved by them amicably and that there are sufficient grounds for withdrawing the case, it may allow such withdrawal.
16. In view of the above referred Sections it is clear that the Labour Court deals with the adjudication and determination of industrial disputes?, unfair labour practices? and matters relating to implementation or violation of a settlement referred to it by the Government?. As per Section 2 (xv) of the Act of 2010, "industrial dispute" means "any dispute or difference between employers and employers or between employers and workmen or between workmen and workmen which is connected with the employment or non-employment or the terms of employment or the conditions of work of any person, and is not in respect of the enforcement of such right guaranteed or accrued to him by or under any law other than the Act, or any award or settlement for the time being in force ". But in the instant case the Petitioner is not the employer of the Respondent No.2 who worked for one Sally Textile Mills? in Jauharabad and the dispute over payment of pension under the Act of 1976 was not an industrial dispute. As such, the case of the Respondent No.2 does not fall within the above referred categories.
Moreover , the question of payment of pension under the Act of 1976 does not fall within the definition of unfair labour practice or relates to implementation or violation of a settlemen t referred to it by the Government?. Reliance in this regard can be placed on the case titled Employees Old-Age Benefits Institution, Rawalpindi and another v . Ejaz Ahmad (1988 PLC (C.S.) 261) wherein this Court has held as under: "4. The argument of the learned counsel for the appellant is forceful, that the learned lower Court had no jurisdiction. Needless to say that Labour Courts have jurisdiction to adjudicate upon industrial dispute or petitions brought under section 25-A of Industrial Relations. Ordinance 1969. The petition of the respondent was not brought under section 25-A but was under section 23 of the Employees Old-Age Benefits Act, 1976. Since the respondent could sue the appellant under section 23, therefore, he had brought the petition against the appellant otherwise he would have sued the employer under section 25-A of Industrial Relations Ordinance, 1969. A dispute between an employer and employee is competent under section 25-A and Labour Courts can adjudicate upon only such disputes which are either between the workmen and employers, between the employers and workmen and between employer and employee. Since the present dispute is not between the employer and the respondent, the Labour Court had no` jurisdiction."
17. In view of the above, the Respondent No.1 has exercised its powers without any jurisdiction, therefore, its orders cannot be sustainable in the eye of law. Learned counsel for the Petitioner has placed reliance on the case titled District Education Officer and 2 others v. Zahid Mehmood and another (PLJ 2017 Lahore 500) and stated that this Court has held as under: "As discussed above and in view of the judgments of the Hon'ble Supreme Court of Pakistan, referred above, the Respondent No.1 has not acted in accordance with law by assuming the jurisdiction of which he was not bestowed. Therefore, in this case, the District & Sessions Judge/ Chairman, Human Rights Commission is specifically not empowered to take cognizance of the service matter at hand and the decision of the District Judge to reinstate the Respondent No. 1 is patently illegal and void, when it is expressly barred. It has also been observed that this Constitutional Petition concerns the unlawful jurisdiction of the District Judge in respect of deciding the service matter because the Petitioner has filed this petition under Article 199 (1)(a)(ii) of the Constitution to declare the proceedings taken (impugned order) within the territorial jurisdiction of this Court by a District Judge; that have been taken without lawful authority and is of no legal effect."
18. Under Article 4 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution"), every individual has the right to be dealt with in accordance with law and no person is liable to do which the law does not require him to do. In the case titled Faisal Sultan v. E.D.O. (Education) and others (2011 PLC (C.S.) 419 [Lahore]) , it has been clearly held as under: "An integral, intrinsic and incidental part of "law" under Article 4 is the right to procedural due process, right to be treated fairly at all times, right to procedu ral fairness and right to procedural propriety . Right to a fair procedure is, therefore, constitutionally guaranteed in Pakistan and makes the Constitution standout proudly in the Constitutions of the world. Article 4 of the Constitution is a robust and dynamic amalgam of the cardinal principle of natural justice, procedural fairness and procedural propriety of the English jurisprudence and Procedural Due Process of the American jurisprudence. Constitution of Pakistan has boldly recognized this right to be an inalienable right of every citizen or of any person for the time being in Pakistan."
19. It has been established in the case of Azizullah Memon v. Province of Sindh and another (2007 SCMR 229) that since impugned action was initiated and taken to its logical conclusion under a misconception of law and under a wrong law , it had vitiated entire proceedings including final order , which could not be sustained under the law .
20. Similarly , it is an established principle of law that where procedure had been provided for doing a thing in a particular manner then same should be done in that manner alone and not in any other way or it should not be done at all; otherwise it would be considered non-compliance of the legislative intent and would be deemed illegal.
(rel. Abdul Khaliq Mandokhel v. Chairman, Balochistan Public Service Commission (2016 PLC(CS) 1184 [Quetta]); Falak Niaz v. Amal Din (2016 YLR 2047 [Peshawar]); Sabz Ali Khan v. Inspector General Of Police, KPK (2016 YLR 1279 [Peshawar]); Cantonment Board Clifton v. Sultan Ahmed Siddiqui (2016 CLC 919 [Karachi]); and Federation of Pakistan v . Asad Javed (2016 PLD 53 [Islamabad]) )
21. As discussed above and in view of the judgments of the Hon?ble Supreme Court of Pakistan, referred above, the Respondent No.1 has not acted in accordance with law by assuming the jurisdiction of which he was not bestowed. Therefore, in this case, the Respondent No.1 was not empowered to take cognizance of the matter and his order is patently illegal and void, when it is expressly barred.
22. In view of above mentioned facts, circumstances, laws and case laws, this Court suffice it to hold that the entire exercise by the Respondent No.1 while passing the impugned orders is illegal and without jurisdiction. iii. Whether the instant petition is maintai nable as the remedy of Appeal was not availed by the Petitioner before the Punjab Labour Appellate T ribunal against the orders of Labour Court?
23. So far as the question regarding the invocation of jurisdiction of this Court under Article 199 of the Constitution instead of filing Appeal before the Labour Appellate Tribunal is concerned, in this regard it is stated that where the order is passed without jurisdiction this Court under its constitutional jurisdiction can interfere into the matter . As it has been held above, the impugned orders have been passed by the Respondent No.1 without jurisdiction, therefore, there was no need to avail remedy of Appeal. Reliance in this regard can be placed on the case titled Sardar Sultan Ahmad Khan v. Government of Punjab through Project Director , Department of Agriculture Punjab, Lahore and 4 others (2001 MLD 1013 ) wherein this Court has held as under: "So far as the contention of the learned counsel for respondents 2, 4 and 5 as to failure of petitioner to avail alternate remedy is concerned, I do not find that any equally efficacious alternate remedy was available. Besides there is no dearth of authority , that where an order impugned before this Court suffers from illegality on the face of the record or is in excess of jurisdiction or is without jurisdiction, a certiorari may be granted even though the right of statutory appeal had not been availed of. Reference be made to the cases of "Nagina Silk Mill, Lyallpur v. The Income Tax Officer , etc." (PLD 1963 Supreme Court 322) and "The Murree Brewery Co. Ltd., v. Pakistan through the Secretary and 2 others" (PLD 1972 Supreme Court 279). "
DETERMINA TION
24. In view of what has been discussed above, the instant petition is allowed and the impugned orders dated 15.02.2017 and 17.05.2017 are hereby set aside. However , the Respondent No. 2 is free to approach competent forum of law for redressal of his grievance in accordance with law .