This common judgment decides upon the issues raised in the petitions detailed in Schedule "A and B" appended with the judgment as all the petitions raise common questions of law and facts.
2. There are two sets of petitions before the Court. The first set of petitions mentioned in Schedule-A have been filed by employers who have challenged the orders of the Authority under Payment of Wages Act, 1936 ("Authority ") where payment of wages in favour of the employees have been ordered-by the Authority through the orders impugned before the Court. The second set of petitions mentioned in Schedule-B have been filed by Financial Institutions against the orders of the Authority with respect to the claims filed before them by retired bank officers claiming retirement benefits. The Authority decided to proceed with the claims holding that it has jurisdiction in the matter . As most of the issues are common, these cases have been heard together .
3. The basic challenge in the petition detailed in Schedule A are that Authority does not have jurisdiction in the matter because after the 18th Amendment in the Constitution of Islamic Republic of Pakistan, 1973 ("Constitution "), the matter pertaining to labour and welfare of labour devolved on to the Provinces and the Authority established under the Federal law had become incompetent and cannot hear the matter . In some of these cases apart from 18th Amendment argum ent, merits of the impugned order have also been challenged, interim orders have been challenged and in some petitions orders passed on miscellaneo us applications have also been challenged.
4. The second set of petitions filed by the Financial Institutions (Schedule B) the Petitioners have challenged, in the form of quo warranto , the exercise of Authority by persons appointed under Section 15 of the Act. The basic grievance is that the Respondents acting as the Authority under the Act are not eligible to hold office as they do not meet the qualifications provided in Section 15 of the Act. In this regard, in an earlier round of litigation, WP No. 14499/2009 was filed wherein retired Executive Officers of the Bank claimed certain pensionary benefits, which was denied to them vide judgment dated 15.12.2009 on account of the fact that they had accepted a revis ed pay package on the basis of which their pension was given. The petition was ultimately dismissed as being not maintainable as it was filed by a registered body of the retired Executive Officers against a private Bank.
Subsequently , the question of jurisdiction was agitated before the Authority in the applications filed under Order VII Rule 11 of the Civil Procedure Code, 1908 ("CPC "), which were rejected as the Authority claimed that it had jurisdiction in the matter . These orders have been challenged in WP No. 9650/2010, which was dismissed by a learned Division Bench vide order dated 21.02.201 1 on the ground that a writ of quo warrant was not maintainable against a designation where no specific person had been named and that the jurisdiction of the Authority was not limited to deal with cases involving workman. The Petitioners then refilled the writ petition in terms of order dated 21.02.201 1 in the form of the instant petitions. Through these petitions, the Petitioners have named the persons acting as Authority under the Act and have challenged their appointments as the Authority on the ground that they cannot hold public office since they are not eligible in terms of Section 15 of the Act. In the meanwhile, the same matter was challenged in WP No. 13792/201 1 which was accepted vide judgment dated 30.09.2015, the impugned orders were set aside and the claim filed by the Respondents before the Authority were dismissed with respect to the Financial Institutions. Learned counsel for the Petitioners have relied on the stated judgment dated 30.09.2015 to urge the point that the matter raised in the instant petition stands decided.
5. The second ground urged before the Court in these petitions is that the Petitioners are Financial Institution being trans provincial in nature, hence the Authority cannot exercise jurisdiction over their employees as jurisdiction in such case vests with the National Industrial Relations Commission ("NIRC"). In this regard, reliance has been placed on the judgment of this Court "Imran Maqbool President, MCB Bank Limited v. Federation of Pakistan through v. Secretary Law, Justice and Human Rights Division, Islamabad etc." (2018 LHC 1960 ) and the august Supreme Court of Pakistan Messrs Sui Southern Gas Company Ltd. and others v. Federation of Pakistan and others (2018 SCMR 802). Learned counsel for the Petitioners argued that this matter has already been addressed in WP No. 13792/201 1 in Paragraph No.15 wherein it is held that since the Financial Institutions are trans-provincial in nature, the Autho rity does not have jurisdiction. The said judgment was then appealed against before the august Supreme Court of Pakistan in which leave granting order was passed on 22.07.2016 and the operation of Paragraph Nos. 25 to 28 of the impugned judgment have been suspended. However , so far as the decision given in paragraph 15, that remains intact.
6. Report and parawise comments have been filed on behalf of the Respondents No. 2, Secretary Labour , Government of Punjab, Lahore as well as private Respondents No. 3, 5, 6, 7, 8, 10 to 12. It is argued that the Respondents, who are acting as Authority , have been appointed in accordance with law. Moreover , the legal challenge has been defended while uphol ding the law and the manner in which the appointments have been made.
It is also alleged that since the matter is sub-judice before the august Supreme Court of Pakistan where the operative part of the judgment has been suspended, this Court is not bound by the leave granting order .
7. With respect to the quo warranto challenge to the appointment of the Authority that matter is sub-judice before the august Supreme Court of Pakistan vide leave granting order dated 22.07.2016. However , so far as the argument that the Banks are trans-Provincial Organization, the matter stands decided in terms of the judgment of the august Supreme Court of Pakistan 2018 SCMR 802 (supra ) and of this Court 2018 LHC 1960 (supra) wherein it was has held as under: This issue was considered by the august Supreme Court of Pakistan in the NIRC case at great length. The term 'trans-provincial organization' means an organization which operates at a trans-provincial level, that is they operate in more than one province. In terms of the NIRC case the federal legislature has extra territorial authority to legislate on matters which pertain to trans-provincial organizations. The Court relied on Item No. 13 in Part II of the Federal Legislative List of the Constitution which provides for inter-provincial matters and coordination, meaning that the Federation has to make laws relating to inter-provincial matters. Therefor e in the NIRC case, the august Supreme Court of Pakistan concluded that the federal legislature has extra territorial authority to legislate, "however the same authority does not lie with the provincial legislature. The august Supreme Court of Pakistan also held that in order to preserve and regulate a right which transcends provincial boundaries, only the Federation is competent to legislate on such matters and Item No. 58 and 59 of the Fede ral Legislative List provide the relevant entries to bring it in the federal domain. The Provincial legislature does not have extra territorial legislative competence, therefore it cannot legislate with regard to rights which transcend its provincial boundaries.
Under the circumstances, on this point alone, the petitions filed by the Banks mentioned in Schedule-B are allowed and the impugned orders are set aside as the Authority acting under the Provincia l law does not have jurisdiction over Financial Institutions which are trans provincial organizations.
8. With respect to the second set of cases it is noted that they were filed soon after the 18th Amendment, whereafter the Federal law was adopt ed by the Province law in terms of the Punjab Payment of Wages (Amendment Act) 2014 on 19.3.2014 and these cases are now being tried under the Provincial law. Even otherwise, in terms of the judgment of this Court cited at "Salim Javed Baig and others v. Federal Ombudsman and others" (PLD 2016 Lahore 433) and the judgment passed by the august Supreme Court of Pakistan 2018 SCMR 802 (supra) under Article 270AA (6) of the Constitution all applicable Federal laws remain in force as a Provincial law until such time that the Federal law is repealed or amended or adop ted by the Province. Therefore, to this extent there is no merit in the ground for challenge as the Province has adopted the Federal law and the Authority is acting in its capacity as Provincial Authority . Even otherwise it is noted that these petitions have been filed by the employers against the orders passed by the Authority in favour of the employees for whom statutory remedy of appeal is available under Section 17 of the Act. Hence the petitions mentioned in Schedule-A being not maintainable are dismissed .