ROZI KHAN BARRECH, J.---- In the instant Constitutional Petition, the petitioner has claimed the following relief:- "It is, therefore, in view of above respectfully prayed that impugned judgments dated 31.10.2018 and 07.12.2018 passed by respondents Nos.5 and 6 respectively may kindly be set aside, in the interest of justice ".,
2. Facts of the case are that the respondent No.1 filed a grievance application under section 41 of Balochistan Industrial Relation Act, 2010 (hereinafter "the Act") against the petitioner and respondents Nos.2 to 4 with the averments that he was appointed as Cooli in the year 1982 and being permanent workman comes within the meaning of section 2(1) of, Industrial and Commercial Employment (Standing Orde rs) Ordinance as well as section 2(dd) of Balochistan Industrial Relation Act, 2010. On 21.07.1992 the applicant was promoted as Gas Fitter . The applicant along with other colleagues came to know that some juniors have been promoted as Supervisor the rules and seniority especially petitioner . The applicant after existing all available remedies but all in vain and subsequently approached the Labour Court with the prayer for promotion as Supervisor from retrospective effect with all back benefits.
3. The application was contested by the petitioner and respondents Nos. 2 to 4 by means of filing written statements on legal as well as on factual grounds.
4. Out of the pleadings of the parties, following issues were framed:- "1. Whether Grievance Application filed by the applicant is not maintainable in view of Preliminary Legal Objection `B' and `E' of Written Statement?
2. Whether letter No.GD-ii/145/AB, dated 01.06.2017 is illegal and liable to be set aside?
3. Whether applicant is entitled for promotion being Senior employee?
4. Whether the applicant is entitled for the relief claimed for?
5. Relief?
5. After framing issues, both the parties are directed to produce their respective evidence. The respondent No.1 produced two witnesses and lastly got recorded his statement. In rebuttal, the respondents Nos.2 to 4 examined their representative and the petitioner produced two witnesses, and got recorded his statement.
6. After hearing both the learned counsel for the parties, the learned District and Sessions Judge/Presiding Officer, Labour Court-I Balochistan, Quetta, has accepted the application of the respondent No.1 on 31.10.2018. Being aggrieved from the judgment dated 31.10.2018 the petitioner filed appeal before the learned Balochistan Labour Appellate Tribunal, Quetta, and the same was also dismissed on 07.12.2018. Hence this petition.
7. We have heard the learned counsel for the parties and have minutely gone through the available record. During course of the arguments, query put to the learned counsel for the respondent No.1 with regard to the maintainability of the grievance application under section 41 of the Act, 2010 before the learned Labour Court filed by the employee of Communication and Works Department (C&W). The learned counsel for the respondent No.1 was of the view that the respondent No.1 is a permanent employee of Government of Balochistan i.e. C&W Department in a lower grade and thus rightly approached the forum available under the labour law. It was further contended that a department of the Government of Balochistan squarely covered by the term "Establishment" as defined in the Balochistan Industrial Relation Act, 2010.
8. The learned counsel for the petitioner as well as learned Assistant Advocate General appearing on behalf of respondents Nos.2 to 4 were of the view that the men in Government service approach before Labour Court-I, for the reason he neither fall within the ambit of worker or workman, rather fall within the category of civil servants as defined in section 2(1)(b) Civil Servant Act, 1974 (Act, 1974). It was further contended that a government department in no way comes within the purview of Establishment, defined in the Balochistan Industrial Relations Act, 2020. It may be observed that the term government servant defined by Rule 3(1)(b) of the status of Balochistan Government Servants (Conduct) Rules, 1979. As per the same the "government servant means a person to whom these Rules apply". While Rule 2 of the Rules, 1979 sated the extent of application of the Rules. It reads as under:- "2., Extent of application. These rules shall apply to all persons, whether on duty or on leave, within or without Balochistan, serving in connection with the affairs ,of the Province of Balochistan, including the employees of the Provincial Government deputed to serve with a Statutory Corporation or with a non-Government employer , but excluding:-
(a) member of an All-Pakistan Service serving in connection with the affairs of the Province;
(b) holders of such posts in connection with the affairs of the Province of Balochistan, as the Provincial Government may , by a notification in the official Gazette, specify in this behalf"
9. Despite the fact that the respondent No.1 is an employee of C&W department and performed his duty on the post though lower in grade, with no power to hire or fire, but this fact in no way could bring him within the ambit of worker or workman as defined by section 2 clause (dd) the Balochistan Industrial Relations Act, 2010. The terms defined as under:- "(dd) "worker" and "workman" mean person not falling within the definition of employer who is employed (including employment as a supervisor or as an apprentice) in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment express or implied, and, for the purpose of any proceedings under this Act in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid-off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, law-off or removal has led to that dispute but does not include any person who is employed mainly in managerial or administrative capacity"
10. The learned counsel for the respondent No.1 was of the view that the term Establishment as used in Act, 2010 also included a Government Department, thus the laws meant for Labours (worker or workman) have application on the employees working in such departments. For better understanding reproduction of the term Establishment as defined by section 2(i) Act, 2010 would be beneficial. It reads as under:- "(i) "establishment" means any office, firm, factory , society , undertaking, company , shop, premises or enterprise, which employees workmen directly or through a contractor for the purpose of carrying on any business or industry and includes all its departments and branches, whether situated in the same place or in different places and except in section 30 includes a collective bargaining unit, if any, constituted by any establishment or group of establishments"."
11. The term Establishment in Act, 2010 though referred to some office, and also all its departments, but these terms as used in no way could be extended to include a department running the affairs of Government, Federal or Provincial. Rather from plain reading of the definition it spelt out any office, firm or etc, which employees workers for the purpose of carrying on any business or industry , having no nexus with Government Department.
12. The term Employer also defined by section (2)(h) of the Act, 2010. Though it includes an establishment run by or under the authority of any department of the Provincial Government, but it is with an explanation, reproduction will be beneficial; "(h) "employer" in relation to an establishment, means any person or body of perso ns, whether incorporated or not, who or which employs workmen in the establishment under a contract of employment and includes, -"
(i) ----------
(ii) ----------
(iii) In relation to an establishment run by or under the authority of any department of the Provincial Government, the authority appointed in this behalf or , where no authority is so appointed; that Head of the department;
(iv) --------- Explanation.- For the purpose of distinction from the category of "workers" or "workmen", officers and employees of a department of the Provincial Government or local authority who belong to the superior , managerial, secretarial, directorial, supervisory or agency staff and who have been notified for this purpose in the official Gazette shall be deemed to frill within the category of "employers".
13. The above quoted provisions clarified that the person who are serving in connection with the affairs of Province, or even the employees of the Provincial Government deputed to serve with a statutory corporation or with a non- Government employee are Government C servants, in no way fall within the ambit of worker or workman. As such, the Balochistan Industrial Relations Act, 2010 have no application on them.
14. All these provisions if read co-jointly the employees serving in the C&W Department do not fall within the purview of worker or workman, and the laws meant for workers and workman including the Act of 2010 are not applicable to them. The respondent No.1 is in government employment. Sectio n 2(1)(b) the Balochistan Civil Servants Act, 1974, defines a civil servant as under:- "2(1)(b) "civil servant" means a person who is a member of a civil service of the Province of Balochistan or who holds a civil post in connection with the affairs of the Province, but does not include--- a person who is on deputation to the Province of Balochistan from the Federation or from any Province or other authority; or a person who is employed on contract, or on work charged basis, or who is paid from contingencies; or a person who is a 'worker' or 'workman' as defined in the Factories Act, 1934 (XXV of 1934) or the Workmen's Compensation Act, 1923 (VIII of 1923)".
In view of above it is concluded that the Labour Court and Labour Appellate Tribunal had no jurisdiction to entertain the grievance application of respondent No.1. For the above reason the constitution petition is accepted. Without dilating upon merits of the case, the judgment dated 31.10.2018 passed by learned District and Sessions Judge/Presiding Officer, Labour Court-I, Balochistan, Quetta, and judgment dated 07.12.2018 passed by learned member Labour Appellate Tribunal Balochistan, Quetta, are declared void and of no legal ef fect.
The grievance application filed by the respondent No.1 stands dismissed for want of jurisdiction. 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.