MUZAMIL AKHTAR SHABIR, J.----Through this Constitution petition, the petitioner, Engineer Bismillah Kakar, who was initially appointed on 23.07.2012 as Deputy Manager (Training and Development) in BS-17 under Aghaz-e-Haqooq-e-Balochistan Package (AHBP), in the Regional Office of Pakistan Industrial Technical Assistance Centre (PITAC) at Quetta and was transferred to its Lahore Office on 28.09.2012 and has been presently allowed to serve on acting charge basis as Deputy Director Technical, PITAC, Headquarter, 234- Ferozepur Road, Lahore, has called in question order dated 06.12.2021 (the impugned order) whereby he has been transferred from PITAC Headquarter, Lahore to PITAC Regional Office, Quetta with immediate effect.
2. It is contended by Mr. Tanveer Ahmad Ghumman, Advocate, the learned counsel for the Petitioner that as the Petitioner is proposed President of PITAC Officers Welfare Association (POWA) and the matter of its registration is pending with the Registrar Trade Unions (RTU), at National Industrial Relations Commission (NIRC), Islamabad, therefore, during the pendency of the same, in view of Section 3 read with Section 17 of the National Industrial Relations Act, 2012 (the ACT), he cannot be transferred to any other place without his consent, save with approval of the RTU. Further states that there is no post of grade 18 Officer available in the Regional Office at Quetta, hence, he cannot be transferred on that ground as well. Seeks setting aside of transfer order.
3. In his defense, Mr. Javed Iqbal, Advocate, the learned counsel appearing on behalf of Respondents Nos.2, 3 and 4, who are Director General (DG) and other officers of PITAC, states that the Petitioner, who was recruited from Quetta under the under Aghaz-e-Haqooq-e-Balochistan Package (AHBP), is an engineer working with PITAC and has been transferred from Head Office at Lahore to Regional Office at Quetta (where he was initially appointed) to manage the affairs of an under construction project in Balochistan for cites at Quetta and Gwadar for the purpose of raising the infrastructure, which is a portion of CPEC and his services were essentially required at the site because no other engineer was available with the PTAC to undertake the said assignment, and he has been transferred on administrative grounds arising out of sheer necessity. Furthermore, the petitioner was initially appointed at Quetta under Aghaz-e-Haqooq-e-Balochistan Package (AHBP), hence besides his work he can continue his efforts relating to registration. of POWA from Quetta; moreover, the petitioner is holding an acting charge in BS-18, whereas he is actually a BS-17 grade employee and has been transferred along with the post to Quetta; hence, grievance of the petitioner is without any substance. In view of foregoing, seeks dismissal of this petition, by stating that this Constitution petition is not maintainable.
4. On behalf of the Federation, Ms. Zarish Fatima, the learned Assistant Attorney General has objected to the maintainability of this petition, inter alia, by stating that as the petitioner is governed by non-statutory terms and conditions of service and alternate remedy is available to the petitioner, therefore, the Constitution petition is not maintainable. The other law officers and advocates also reiterate the same stance.
5. Heard, record perused.
6. The petitioner, who is serving as Deputy Director at PITAC Headquarter Lahore, has challenged impugned order whereby he has been transferred from PITAC Headquarter, Lahore to PITAC Regional Office, Quetta with immediate effect on administrative grounds. The representation filed by the petitioner with the D.G./ respondent No.2 was dismissed on 10.12.2021 as not maintainable.
He has raised the plea that as the Petitioner is proposed President of POWA, and the matter relating to its registration is pending with the RTU, therefore, during the pendency of the same, he cannot be transferred from Lahore to Quetta in view of Section 3 read with Section 17 of the Act, and the impugned order having been passed with mala fide intention and ulterior motives in order to prevent the Petitioner from invoking jurisdiction of RTU and NIRC for registration of the said union and the said order is liable to be struck down as being without lawful authority and of no legal effect.
7. In order to appreciate the contentions of the learned counsel for the parties and arguments addressed in support of their respective claims, some definitions and Sections of the Act relevant to the dispute under consideration are reproduced below: "1. Short title, extent, application and commencement. (1).----
(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,---
(b) in the administration of the State other than those employed as workmen; "
"2. Definitions. In this Act, unless there is anything repugnant in the subject or context,--
(ix) "employer" in relation to an establishment, means any person or body of persons, whether incorporated or not, who or which employs workmen in the establishment under a contract of employment and includes,---
(a) an heir, successor or assign, as the case may be, of such person or body as aforesaid;
(b) any person responsible for the management and control of the establishment;
(c) in relation to an establishment run by or under the authority of any department of the Federal Government, the authority appointed in this behalf or, where no authority is so appointed, the Head of the department;
(d) in relation to an establishment run by or on behalf of a local authority, the officer appointed in this behalf, or where no officer is so appointed, the chief executive officer of that authority; Explanation. --For the purpose of distinction from the category of "workers" or "workmen", officers and employees of a department of the Federal Government 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 fall within the category of "employers"; and
(e) in relation to any other establishment, the proprietor of such establishment and every director, manager, secretary, agent or officer or person concerned with the management of the affairs thereof;
(xxii) "officer" in relation to a trade union, means any member of the executive thereof but does not include an auditor or legal adviser
(xxxi) "trade union" means any combination of workmen or employers formed primarily for the purpose of regulating the relations between workmen and employers, or workmen and workmen or employers and employers, or for imposing restrictive conditions on the conduct of any trade or business, and includes a federation of two or more trade unions."
"(xxxiii) "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 are 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, lay-off, or removal has led to that dispute but does not include any person who is employed mainly in managerial or administrative capacity."
"3. Trade unions and freedom of association.- Subject to the provisions of this Act and notwithstanding any other law for the time being in force,---
(a) workers, without distinction whatsoever, shall have the right to establish and, subject to the rules of the organization concerned, to join international associations of their own choice without previous authorization: Provided that in the establishment where women are also employed the Trade Union shall include the women in the executive of the said trade union with the same proportion in which they are employed in the establishment:-- Provided further that no worker shall be entitled to be a member of more than one trade union at any one time and on joining another union the earlier membership shall automatically stand cancelled;
(b) employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organization concerned, to join international associations of their own choice without previous authorization;
(c) every trade union and employers association shall frame its own constitution and rules to elect its representatives in full freedom to organize its administration and activities and to formulate its programmes; and
(d) workers and employers' organizations shall have the right to establish and join federations and confederations and any such organization, federation or confederation shall have the right to affiliate with international organizations and confederations of workers' and employers' organizations."
"17. Transfer, etc., of officer of trade union during pendency of application for registration. Save with the prior permission of the Registrar, no officer or member of a trade union of workmen shall be transferred, discharged, dismissed or otherwise punished during the pendency of an application for registration of the trade union with the Registrar, provided that the union has notified the names of its officers and members to the employer in writing."
(emphasis supplied)
8. The case of the petitioner is that as per section 3 reproduced above, he is entitled to establish trade union of his own choice without previous authorization and he being the proposed president of the POWA, registration of which is pending before RTU and as per protection provided under section 17 reproduced above, he cannot without prior permission of Registrar be transferred or otherwise punished during pendency of application for registration of the trade union with the registrar, hence it is claimed that the impugned order is not sustainable. In the wake of the above scenario to address the question of maintainability of this petition, the learned counsel for petitioner has been asked to show whether petitioner's terms and conditions of service are statutory or not, he has not been able to show or point out any statutory rules applicable to the petitioner or governing his service. The question arises that when the terms and conditions of services of the Petitioner are non-statutory, whether the Constitution petition would be maintainable. The said question has already been decided by the Hon'ble Supreme Court of Pakistan in the cases reported as Miss Naureen Naz Butt v. Pakistan International Airlines through Chairman, PIA and others (2020 SCMR 1625), Ministry of IPC through Secretary and others v. Arbab Altaf Hussain and others (2014 SCMR 1573), Abdul Wahab and others v. HBL and others (2013 SCMR 1383), Pakistan Telecommunication Corporation v. Iqbal Nasir (2011 PLC (C.
S.) 623 =-- PLD 2011 SC 132), Pakistan International Airline Corporation and others v. Tanweer- ur-Rehman and others (PLD 2010 SC 676) and Pakistan Red Crescent Society and another v.
Syed Nazir Gillani (PLD 2005 SC 806) which provide that where a service grievance was agitated by a person / employee, who was not governed by statutory rules of service, said employee cannot approach the High Court as a petitioner in its Constitutional jurisdiction under Article 199 of the Constitution of Pakistan, 1973 for redress of his grievance.
9. When confronted of the afore-mentioned legal position about Constitution petition not being maintainable, where terms and conditions of service are non-statutory, the learned counsel for the petitioner states that the petitioner has not claimed that his terms and conditions of service are statutory, rather claims that as the rights of the Petitioner provided under Sections 3 and 17 of the Act have been violated and he has been adversely affected, therefore, the Constitution petition is maintainable. The said argument leads to the scenario where the petitioner is not claiming right on the basis of any statutory rules applicable to his case rather relief is claimed on the basis of violation of a statutory right provided under the provision of the Act.
10. As to the question of applicability of the provisions of the Act to the case of the petitioner, especially sections 3 and 17 thereof, relied upon by the learned Counsel for the petitioner, he has been confronted with questions that (i) the petitioner was previously holding the post of the deputy manager and presently holds the post of deputy director on acting charge basis, then how the provisions of the Act are applicable to him in view of the bar contained in Section 1(3)(b) of the Act, which provides that the Act shall not apply to a person in the administration of the State other than those employed as workmen; and (ii) definition of employer provided under Section 2(ix)(e) of the Act includes proprietor of any establishment and every director, manager, secretary, agent or officer or person concerned with the management of the affairs thereof and definition of worker and workman provided under Section 2(xxxiii) of the Act excludes persons falling in definition of employer from its domain, besides excluding person who is employed in managerial or administrative capacity and right under Section 17 of the Act is only available to officer or member of trade union of workmen. In response, the learned counsel states that PITAC does not fall within the definition of the State and is an autonomous Agency registered under the Societies Registration Act, 1960 established through Resolution of the Ministry of Industries, Government of Pakistan dated 26th May, 1962 published in the Gazette of Pakistan on the same date and the petitioner despite his designation as per his nature of duties falls within the definition of worker/workman, which also includes officer of the institution and does not fall within the definition of employer. Be that as it may, whether the petitioner falls within the definition of employer or workman requires deeper appreciation of the inside working of PITAC along with the detailed analysis of the charge of the post held by the petitioner and nature of duties performed by him, which is not permissible under the Constitutional jurisdiction of this Court especially when the parties are not concurring with each other as to the facts narrated by both the sides and disputed questions cannot be determined in constitutional jurisdiction of this Court. Reliance in this behalf is placed on the case titled Pakcom Limited and others v. Federation of Pakistan and others (PLD 2011 SC 44) wherein it has been held that the Superior Courts should not involve themselves into investigations of disputed questions of fact which necessitate taking of evidence and this can more appropriately be done in the ordinary civil procedure for litigation by a suit. It has also been held that this extra-ordinary jurisdiction is intended primarily, for providing an expeditious remedy in a case where the illegality of the impugned action of an Executive or other authority can be established without any elaborate inquiry into complicated or disputed facts and controverted questions of fact, adjudication on which is possible only after obtaining all types of evidence in power and possession of parties can be determined only by a court having plenary jurisdiction in matter. The same principles have been laid in the cases reported as The Commissioner and another v. Mian Sher Muhammad (1972 SCMR 395) and Pakistan Wapda Employees Pegham Union v. Member, National Industrial Relations Commission, Islamabad and others (2015 PLC (C.S.) 45 = 2014 SCMR 1676).
11. In view of the above, lest it may prejudice the case of either of the parties, the question whether the petitioner falls within the definition, of workman/worker or not or is an employer is left undecided, to be determined under some other proceedings wherein remedy may be available to the parties, however, it is noted that the right under section 17 of the Act is available only to the members and officers of the trade union of workmen and not to the employer as the wording of the same is "save with the prior permission of the Registrar, no officer or member of a trade union of workmen shall be transferred, discharged, dismissed or otherwise punished during the pendency of an application for registration of the trade union with the Registrar, provided that the union has notified the names of its officers and members to the employer in writing". It is pertinent to note here that the word officer used in the said section relates to the definition of officer provided in Section 2(xxii) of the Act, which in relation to a trade union, means any member of the executive thereof but does not include an auditor or legal adviser. Needless to mention that in case the petitioner is an employer as per definition provided in the Act, then section 17 would not be applicable to him, hence in that eventuality the petitioner cannot seek its enforcement through Constitutional jurisdiction of this Court and the petition would not be maintainable and no further determination on the topic would be required. However, if the petitioner is a worker or workman, then the provisions of Section 17 of the Act would be applicable to his case as his position would be different. What would be the legal position if the petitioner is assumed to be a workman is discussed hereinafter.
12. The question of maintainability of constitution petition came up for consideration before the Hon'ble Supreme Court of Pakistan in the case titled Muhammad Amin and another v.
Government of Punjab and others (2015 PLC (C.S.) 1082 (SC) = 2015 SCMR 706), wherein the petitioners, who were not working under any statutory rules, while working on different posts in the Market Committee, Sialkot were proceeded against departmentally under the provisions of PEEDA Act, 2006, which resulted in Major penalty of removal from service against one petitioner concurrently awarded to him and the other petitioner was ordered by the appellate authority to be compulsorily retired by reducing his penalty of dismissal from service and both the petitioners challenged the said orders through constitution petitions before the High Court, which were dismissed and the Intra Court Appeals against the same also met the same fate. The said orders were then called in question before the Supreme Court, the Hon'ble Supreme Court held the writ petitions as maintainable, relevant portion of order is reproduced below: "5. We have heard the learned Counsel for the petitioners as well as the learned Law Officer and perused the record. The petitioners were appointed in the Market Committee under section 16 of the Agricultural Produce Markets Ordinance, 1978. Pursuant to section 35 of the aforesaid Ordinance, the Competent Authority has framed Rules called as "the Punjab Agricultural Produce Markets (General) Rules, 1979". Sub-Rule (6) of Rule 70 of the Rules, 1979 provides as under:-- In respect of service conditions including disciplinary matters and other matters ancillary thereto, the employees of the market committee shall be governed mutatis mutandis by the rules applicable, from time to time to the employees of the Punjab Government".
We may, however, observe that the Market Committees do not have any statutory service Rules to regulate terms and conditions of service of their employees.
6. Section 2(h) (i) of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006, provides that "employee" means a person (i) in the employment of a corporation, corporate body, autonomous body, authority, statutory body or any other organization or institution set up, established, owned, managed or controlled by the Government, by or under any law for the time being in force or a body or organization in which the Government has a controlling share or interest and includes the Chairman and the Chief Executive and the holder of any other office therein". This definition covers the petitioners who are employees, of the Market Committee, which does not have independent statutory service Rules.
7. Section 19 of the Act of 2006 which has been made applicable by virtue of section 2(h)(i) of the Act of 2006 read with section 35 of the Ordinance, regulates the services of the petitioners. Section 19 of the Act of 2006 which appears to have been amended subsequently clearly draws a line between the Civil Servants and the employees defined under section 2(h)(i) of the Act of 2006.
The Civil Servants who are proceeded against under the provisions of the Act of 2006 have to approach the Punjab Services Tribunal against a final order passed by the Departmental Authorities. The other employees who are covered under section 2(h) (i) of the Act of 2006, if aggrieved by a final order passed by the Departmental Authorities under section 16 or 17 of the Act of 2006, can seek redressal of their grievances before the High Court.
8. These provisions are in line with the judgments of this Court reported as Muhammad Mubeen- us-Salam and others v. Federation of Pakistan (PLD 2006 SC 602), Pakistan Defence Officers Housing Authority v. Lt. Col. Syed Jawaid Ahmed (2013 SCMR 1707), Contempt Proceedings against Chief Secretary Sindh and others (2013 SCMR 1752). It appears that the subsequent amendment made in section 19 of the Act of 2006 has not been brought to the notice of the learned High Court which has resulted in reaching the erroneous conclusion.
9. We, therefore, in these proceedings clarify that the learned High Court has the jurisdiction under Article 199 of the Constitution to redress the grievance of the employees who are covered by definition of section 2(h) (i) of the Act, 2006 except those who are defined under section 2(b) of the Punjab Civil Servants Act, 1974.
10. We, for the aforesaid reasons, convert the Petitions into Appeals and allow them. The impugned order dated 19-3-2013 passed in Intra Court Appeals Nos. 182 and 183 of 2013 as well as order dated 22-1-2013 passed in Writ Petitions Nos. 31711 and 29312 of 2012 by the learned Judge in Chambers are set aside. The Writ Petitions of the petitioners shall be deemed to be pending before the High Court which shall be decided on merits after hearing the parties afresh."
13. In the case of Haroon-ur-Rashid v. Lahore Development Authority and others (2016 SCMR 931), by placing reliance on the case of Muhammad Amin (supra), it was held that Employees of statutory corporation proceeded against under statutory rules or any statutory dispensation (such as PEEDA Act, 2006) had remedy under Article 199 of the Constitution.
14. The perusal of the principles laid down in the afore-referred case laws is helpful in drawing the inferences that where the case relates to a matter wherein statutory rules have not been framed, or non-statutory rules are applicable to the employee, or statutory rules have neither been violated nor been sought to be enforced, then the person seeking a remedy has to show that some statutory provision has been invoked by respondents or violated, or needs to be enforced, which is a condition precedent for invoking Constitutional jurisdiction of this Court. In case L of an employee with non-statutory rules, if he is proceeded against under some statutory provision of law (such as PEEDA, 2006 in afore-mentioned cases), he may also invoke Constitutional jurisdiction of this Court under Article 199 of the Constitution, however, said remedy may not be available if some other remedy provided under the law is available to him for redress of his grievance as referred to in para No. 9 of Muhammad Amin's case (supra), where in it is mentioned that a Civil Servant has still got to invoke jurisdiction of Services Tribunal against final orders of authority instead of the Constitutional jurisdiction of this Court.
15. In these circumstances, the next question arises that whether violation of Section 17 of the Act provides the petitioner with a remedy of filing of Constitution petition before this Court, the said question would have been in affirmative if his statutory rights were violated and no other remedy was available to him; however, in the present case, the allegation levelled by the Petitioner is that he has been transferred with mala fide intention to prevent him from participation in trade union activities which has specifically been mentioned as unfair labour practices on the part of the employers in terms of Section 31 (d) (i) (ii) of the Act which are produced as under: "31. Unfair Labour practices on the part of employer. - (1) No employer or trade union of employers and no person acting on behalf of either shall--
(a) ...................................................
(b) .................................................
(c) ..................................................
(d) Dismiss, discharge, remove from employment or transfer or threaten to dismiss, discharge or remove from employment or transfer a workman or injure or threaten to injure him in respect of his employment by reason that the workman:
(i) is or proposes to become, or seeks to persuade any other person to become, a member or officer of a trade union; or
(ii) participates in the promotion, formation or activities of a trade union."
(emphasis supplied)
16. Section 33 of the. Act provides remedy against unfair labour practice by the respondent- department before NIRC which is reproduced as follows: "33. Redress of individual grievances.--(1) A worker may bring his grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement for the time being in force to the notice of his employer in writing, either himself or through his shop steward or collective bargaining agent within ninety days of the day on which the cause of such grievance arises.
(2) Where a worker himself brings his grievance to the notice of the employer, the employer shall, within Fifteen days of the grievance being brought to his notice, communicate his decision in writing to the worker.
(3) Where a worker brings his grievance to the notice of his employer through his shop steward or collective bargaining agent, the employer shall, within seven days of the grievance being brought to his notice, communicate his decision in writing to the shop steward or as the case may be the collective bargaining agent.
(4) If the employer fails to communicate a decision within the period specified in subsection (2) or, as the case may be subsection (3), or if the worker is dissatisfied with such decision, the worker or the shop steward may take the matter to his collective bargaining agent or to the Commission or, as the case may be, the collective bargaining agent may take the matter to the Commission, and where the matter is taken to the Commission, it shall give a decision within seven days from the date of the matter being brought before it as if such matter were an industrial dispute: Provided that a worker who desires to so take the matter to the Commission shall do so within a period of sixty days from the date of the communication of the employer or, as the case may be, from the expiry of the period mentioned in subsection (2), or subsection (3), as the case may be.
(5) In adjudicating and determining a grievance under subsection (4), the Commission shall go into all the facts of the case and pass such orders as may be just and proper in the circumstances of the case.
(6) If a decision under subsection (4) or an order under subsection (5) given by the Commission or a decision in an appeal against such a decision or order is not given effect to or complied with within seven days or within the period specified in such order or decision, the defaulter shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to seventy-five thousand rupees, or with both.
(7) No person shall he prosecuted under subsection (6) except on a complaint in writing--
(a) by the workman if the order or decision in his favour is not implemented within the period specified therein; or
(b) by the Commission if an order or decision thereof is not complied with.
(8) For the purposes of this section, workers having, common grievance arising out of a common cause of action may make a joint application to the Commission.
(9) Any collective bargaining agent or any employer may apply to the Commission for the enforcement of any right guaranteed or secured to it or him by or under any law or any award or settlement.
(10) There shall be a Tripartite Council for review of grievances of workers in the Islamabad Capital Territory comprising not less than three members each of the workers, employers and the Government: Provided that the representatives of the workers and the employers shall be nominated by the Government after consultation with registered trade unions and employers' organizations to be notified in the Official Gazette."
17. In the present case, representation of the petitioner has already been turned down on the ground of being not maintainable, and now petitioner seeks further remedy against the same, which in case of a workman is available under Section 33 of the Act being special law on the subject which also caters to non-compliance of provisions of section 17 thereof. Where a special law provides a right and a corresponding remedy, then the remedy provided in the said law is to be availed prior to availing any other remedy available under the law and in this scenario this Court is not inclined to exercise constitutional jurisdiction of this Court in favour of the petitioner more so in view of the legal position that it has time and again been held by the Hon'ble Supreme Court of Pakistan that where an alternate efficacious remedy is available to a litigant under the law, jurisdiction of this Court is barred. Reliance can be placed on Province of Punjab through Secretary Communication and Works Department, Lahore through Chief Engineer (North/Central) Punjab Highway Department, Lahore v. Yasir Majeed Sheikh and others (2021 SCMR 624), Federation of Pakistan through Secretary Establishment Division, Islamabad v.
Shafqat-ur-Rehman Ranjha and others (2021 SCMR 153), Indus Trading and Contracting Company v. Collector of Customs (Preventive) Karachi and others (2016 SCMR 842), Dr. Sher Afghan Khan Niazi v. Ali S. Habib and others (2011 SCMR 1813) and Muhammad Abbasi v. S.H.O.
Bhara Kahu and 7 others (PLD 2010 SC 969).
18. In view of the above, regardless of the fact that whether the petitioner falls within the definition of employer or workman/worker, this Constitutional petition is held not to be maintainable for the reason that if he is a worker/workman alternate remedy before NIRC is available to him and if he is an employer, rights provided in provisions of section 17 of the Act sought to be enforced are not applicable to him to enable him to invoke remedy for protection of his rights due to its non- observance by the respondents. However, as the question of the petitioner being a workman/worker or an employer as per the definitions provided in the Act has been left open, this petition is disposed of accordingly with the observation that, if advised, the petitioner may seek appropriate remedy available to him under the law, before proper forum.