The petitioner hereby impugns order dated 12.12.2018 by Punjab Labour Appellate Tribunal, Lahore (respondent No.2) and order dated 19.09.2018 by learned Judge Labour Court-II, Lahore (respondent No.3), whereby the authorities below had concurrently dismissed miscellaneous application filed by the petitioner . The petitioner claimed that same being an association, does not fall within the definition of 'Commercial Establishment', hence the respondent No.3 has no jurisdiction to entertain and adjudicate upon the grievance petition filed by the respondent No.1, alleging grievance against termination letter dated 20.05.2017. Both the Courts below held that the jurisdictional fact/question raised can be decided upon recorded of evidence. Hence, this petition.
2. It is pertinent to point that earlier the petitioners had questioned the status of the respondent No.1 as 'worker ' and 'workman', which proceedings culminated by way of dismissal of Writ Petition No.217907 of 2018, with an observation that question of determination of status of the respondent would be determined after recording of evidence. (No information was available or conveyed that said order has been further impugned, so I am assuming that it was not challenged further).
3. Background of instant proceedings was that petitioners filed application, with a prayer for return of petition on the premise that petitioner club is an association, governed and regulated in terms of Memorandum & Articles of Association, hence do not fall within the definition of 'Commercial Establishm ent' in terms of Industrial and Commercial Employment (Standing Orde rs) Ordinance 1968 as amended in terms of The Punjab Industrial And Commercial Employment (Standing Order) (Amendment) Act, 2012. Additionally , it did not operate for profit.
Application was dismissed by the respondent No.3. and appeal against said order was also dismissed by the respondent No.2.
4. The crucial question is that whether the petitioner is an employer and amenable to the jurisdiction of the respondent No.3 and / or whether the Labour Court, constituted in terms of section 44 of the Punjab Industrial Relations Act 2010, lacks subject matter jurisdiction to entertain grievance petition.
5. After hearing the learned counsels and examining the record, this court is of the opinion that it is pre-mature to exercise discretion, by way of judicial review jurisdiction, in the matter , which is still sub-judice before the respondent No.3 - this petition is a result of detour proceedings, initiated by filing application questioning jurisdiction of the Labour Court. The pivot question at this stage is that whether Labour Court is competent to decide / determine the nature of the dispute qua jurisdiction, raised. The objections qua jurisdiction may assume different shades, some of which may question the validity of law under which a particular authority / tribunal has been created or relate to the constitution or composition of said authority / tribunal in wake of applicable law. And some jurisdictional objections may question the exercise and amenability of jurisdiction with respect to the parties to the lis or regarding subject matter of the dispute raised. Not all the objections are outside the realm or competency of an authority / tribunal. A connected question would be that which are those jurisdictional objections, that can be left to be decided by the authorities / tribunals of limited jurisdiction and which objecti ons need to be adjudged in the exercise of judicial review jurisdiction. Guidance is solicited from celebrated judgment of this court reported as AKHTAR ALI v. ALTAFUR REHMAN (PLD 1963 Lahore 390). Relevant portion whereof is reproduced hereunder: "15. An objection to the jurisdiction of a T ribunal may take one of the following general forms--
(i) that the law under which that T ribunal is created is defective or invalid;
(ii) that the T ribunal is not constituted or appointed validly under the law;
(iii) that a party or the parties is or are not amenable to the jurisdiction of the T ribunal; and
(iv) that the subject-matter is outside the field in which the particular Court is competent to act."
"If a plea falling in the first or the second category is raised before a special Tribunal, the answer of the Special Tribunal, which is a creature of the specia l law and is constituted or appointed under that law, must be simply and shortly that these matters are not for the Special Tribunal to decide. If a party needs a decision on those points, it will have to apply to the Courts of general jurisdiction in appropriate proceedings for that purpose-- ---.
On the other hand, if objections are raised which fall under the third or the fourth general categories, the Rent Controller should immediately ascertain the grounds on which those objections are based, and if those grounds can be settled one way or the other , either on the admission of the parties or on the materials before the Court or with reference to matters that are verifiable from official records, he should proceed to settle those grounds and give his decisions there and then."
6. In view of ratio of the judgment, the objection that Labour Court has no jurisdiction to entertain grievance petition as the petitioner does not fall within the expression "Commercial Establishment" can competently be decided by respondent No.3. Even otherwise, the practice of challenging proceedings by way of collateral attack - when the main case is still pending - deserves to be deprecated, which often lead to compromise the independence of the authority / tribunal created under a special law and otherwise impede the pace of the proceedings. In this case, the specific question of jurisdiction raised is otherwise need to be examined and decided in the light of the documents, referred to and relied upon, which require deliberation and appreciation of factual details. The respondent's counsel has drawn the attention of this Court to the certificate of incorporation issued by Registrar Joint Stock Companies, Lahore. It appears from the bare reading of said certificate that petitioner entity was incorporated/registered under the provisions of Act VI of 1882, as association limited by guarantee. Whether the petitioner can be construed as 'Joint Stock Company, which otherwise falls within the definition of the expression 'Commercial Establishment' in terms of Standing Order. This particular aspect of the matter can be determined upon appreciating facts alleged and evidence produced before the Labour Court. Mere reliance on Memorandum and Articles of Association would not be suffice to determine status of petitioners. The status of the petitioner has to be determined, after considering relevant documents/facts. The doctrine / question of jurisdictional fact has been elaborated by the August Supreme Court of Pakistan in the judgment reported as Mian UMAR IKRAM-UL-HAQUE v. Dr. SHAHIDA HASNAIN and another (2016 SCMR 2186), relevant portion whereof reads as under; "The doctrine of jurisdictional fact connotes that the jurisdiction of an adjudication forum is dependent upon the ascertainment and determination of certain facts. In this behalf, N.S. Bindra in the Interpretation of Statutes Seventh Edition, 1984, p.229, has defined: "Court' s jurisdiction to determine the jurisdictional fact", as follows:- "Court's jurisdiction to determine jurisdictional facts. It is well settled that a Tribunal can investigate into the facts relating to the exercise of its jurisdiction when that jurisdictional fact itself is in dispu te. Where a Tribunal is invested with jurisdiction to determine a particular question, it is competent to determine the existence of the facts collateral to the actual matter which the Tribunal has to try. This power to decide collateral facts is the foundation for the exercise of its jurisdiction.
In Halsbury's Laws of England, it has been stated; "Where the jurisdiction of a tribunal is dependent on the existence of a particular state of affairs, that state of affairs may be described as preliminary to, or collateral to the merits of, the issue. If, at the inception of an inquiry by an inferior tribunal, a challenge is made to its jurisdiction, the tribunal has to make up its mind whether to act or not and can give a ruling on the preliminary or collateral issue; but that ruling is not conclusive".
7. In view of the above, this court is not inclined to exercise judicial review jurisdiction and decide the question, which can be effectively decided by the respondent No.3, otherwise competent to decide the jurisdictional objections raised. The parties are at liberty to request the respondent No.3 to hear and decide the question of jurisdiction, as preliminary question and I leave it to the best judgment of respondent No.3 to consider such request, if raised.
8. This petition is without any merit and the same is, therefore, dismissed.