MUHAMMAD SHAN GUL, J. By means of this judgment, the following four constitutional petitions are sought to be decided since common questions of law and facts are involved: W.P. No.2812 of 2013 W .P. No.2814 of 2013 W .P. No.281 1 of 2013 W .P. No.2813 of 2013
2. The petitioner before this Court is the Bank of Punjab and its operations are spread over the entire country and the bank has branches, besides Punjab, in other provinces of the country as well. Hence, the petitioner is a trans- provincial organization and which is of the essence for the present purposes.
3. The respondents who are employed by the petitioner-bank filed a claim under the Payment of Wages Act, 1936 before the Authority under Payment of Wages Act, 1936 claiming payment of overtime dues. During the course of proceedings the petitioner bank filed an application under Order VII Rule 11 CPC praying for the claim to be dismissed on account of want of jurisdiction since the petitioner bank is a trans-provincial organization and on account of which feature a provincial authority had no jurisdiction to attend to a dispute or a claim rooted in labour law against an organization such as the petitioner .
4. The petitioner bank argued before the Authority that in the aftermath of the 18th Amendment effectuated in the Constitution of Pakistan, 1973 the respondent-Authority had no jurisdiction to adjudicate upon the claim or dispute of overtime being a contingent component which was not covered in terms of the Standing Orders Ordinance, 1968 and since the same was sought to be secured in terms of the Payment of Wages Act, 1936. This application was opposed by the respondents and the Authority under the Payment of Wages Act, 1936 dismissed the application filed under Order VII, Rule 11 CPC. This brought the petitioner to this Court and the petitioner filed the writ petitions under consideration.
5. Learned counsel for the petitioner submits that the order passed by the Authority rejecting applications under Order VII, Rule 11 CPC filed by the petitioner bank is erroneous and bad in law because the same refuses to take into account the law laid down by a learned Division Bench of this Court in "Imran Maqbool, President MCB Bank Ltd. v. Federation of Pakistan through Secretary Law, Justice and Hum an Rights Division, Islamabad and others" (PLD 2019 Lahore 17), by a learned Single Bench of this Court in W.P. No.17858/201 1 titled as "Syed Zia ul Hussnain Shamsi etc. v. Government of Punjab through Chief Secretary , Lahore, etc.", by the Sindh High Court in "KESC and others v. N.I.R.C. and others" (PLD 2014 Sindh 553) and above all by the Hon'ble Supreme Court of Pakistan in "Pakistan Telecommunication Company Ltd. v. Member NIRC and others" (2014 SCMR 535) and "Messrs Suit Southern Gas Company Ltd. and others v. Federation of Pakistan and others" (2018 SCMR 802). Learned counsel for the petitioner adds that these judgments hold that in respect of organizations the operations and functions of which spread outside the province and such organizations who also have registered offices and places of business in more than one province, provincial labour quasi-judicial forums have no jurisdiction in respect of labour disputes. Hence, if the respondents wanted to claim overtime they had to approach the National Industrial Relations Commission (NIRC) for the said purpose. Section 33 of the Industrial Relations Act, 2012 may be perused.
6. On the other hand, learned counsel for the respondent submits that while what the petitioner says may or may not be true the National Industrial Relations Commission has no jurisdiction to deal with the question or dispute of overtime dues and hence the order under challenge has been rightly passed. The learned Assistant Advocate General submits that he has no choice but to respect trite law on the issue and hence supports the counsel for the petitioner .
7. Heard. Record perused.
8. While the points taken by the counsel for the petitioner shall be adverted to in the discourse ahead the particular point raised by the counsel for the respondents about NIRC not having jurisdiction to deal with the dispute or question of payment of overtime dues requires a short shrift in terms of the law laid down by the Hon'ble Supreme Court of Pakistan in "Pakistan Telecommunication Company Ltd. v. Member NIRC and others" (2014 SCMR 535) where at Page-40 the Hon'ble Supreme Court of Pakistan has held as follows:- "It is not the nature of dispute, particu larly, unfair labour practice, which confers jurisdiction on one or the other forum but it is the status of the employer or the group of employers, which would determine the jurisdiction of the Provincial Labour Court and that of the NIRC. To be more clear on the point we have no hesitation to hold that once it is established though any means that the employe r or group of employers has an establishment, group of establishments, industry , having its branches in more than one Provinces, then the jurisdiction of the NIRC would be exclusive in nature and of overriding and super imposing over the Provincial Labour Court for resolving industrial dispute including unfair labour practice, etc. related to the employer , having its establishment or branches or industrial units in more than one Province and re-course has to be made by the aggrieved party to the NIRC and not to the Provincial Labour Court."
9. In this view of the matter , the Hon'ble Supreme Court of Pakistan has unequivocally ruled that it is not the nature of dispute but the status of employer which will be the determining feature for the purpose of gauging jurisdiction in matters related to disputes of labour and hence assumption of jurisdiction by the Authority under Payment of Wages Act, 1936 comes across as erroneous and bad in law .
10. Furthermore, the Hon'ble Supreme Court of Pakistan in "Messrs Suit Southern Gas Company Ltd. and others v. Federation of Pakistan and others" (2018 SCMR 802) has ruled that, "while Federal legislature has extra territorial authority to legislate, no such extra territorial authority has been invested in the provincial legislature and that entry No.13 of Part-II of the Federal Legislative List provided legislative authority to the federal legislature to enact laws relating to inter-provincial matters. In the same judgment it has been held at page-844 that, "the NIRC had jurisdiction to decide labour disputes relating to employees of companies, corporations or establishments functioning in more than one province."
11. The above spares no doubt about the contentions raised by the counsel for the petitioner being correct.
12. In "KESC and others v. N.I.R.C. and others" (PLD 2014 Sindh 553) the Sindh High Court has ruled to the same ef fect. At Page-573 at paragraph No.29 it has been held as follows: "29. This brings us to answer the second question framed by this Court i.e. What legal remedies are available to the employees/ labourers/workers who are employed in a company/corporations/ institutions established in two different Provinces? Declaring Industrial Relations Act, 2012 to be intra vires of the Constitution may be taken to mean that there now exist two laws side by side, one at Federal level i.e. Industrial Relations Act, 2012 and the other at provincial level i.e. Sindh Industrial Relations, 2013 both dealing with similar subjects. The employers or the workmen of trans-provincial establishments may get confused as they may think that there are now two forums concurrently available to them dealing with the same subjects. In order to avoid this confusion of overla pping of jurisdictions as to where the employers or workmen of trans-provincial establishments could seek legal remedy , section 87 has been incorporated in Industrial Relations Act, 2012 which provides that its provisions shall have overriding effect, notwithstanding anythin g contained to the contrary in any other law for the time being in force.
The effect of this non-obstante clause contained in section 87 of Industrial Relations Act, 2012 is only to the extent that for trans-provincial establishments, the forum to seek legal remedy in matters covered by Industrial Relations Act, 2012 is only and only the one provided thereunder i.e. NIRC and not the Labo ur Courts established under the Sindh Industrial Relations Act, 2013. For establishments that are operating at provincial level only it is the provincial law i.e. the Sindh Industrial Relations Act, 2013 that is applicable. All cases pending adjudication in Labour Court pertaining to trans-provincial industrial and commercial establishments shall stand transferred to the NIRC of appropriate jurisdiction."
13. The above quote puts to rest all and any misgivings entertained by the respondents in the present matter . In fact it is quite surprising as to why the Authority under Payment of Wages Act, 1936 did not acknowledge and court the law laid down by the Apex Court as also this Court.
14. This Court in "Imran Maqbool, President MCB Bank Ltd. v. Federation of Pakistan through Secretary Law, Justice and Human Rights Divisio n, Islamabad and others" (PLD 2019 Lahore 17) has also shed light on the issue and has held at paragraph 11, while distinguishing the law laid down in "Salim Javed Baig and others v.
Federal Ombudsman and others" ( PLD 2016 Lahore 433 ) as follows:- "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 Constitutio n which provides for inter-provincial matters and coordination, meaning that, the Federation has to make laws relating to inter-provincial matters. Therefore 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 Nos. 58 and 59 of the Federal 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. ............ In the case of a trans-provincial establishment, the august Supreme Court of Pakistan held that the Federation is competent to interfere in such matters because trans-provincial establishments transcend provincial boundaries."
15. In view of what has been noted above, it is crystal that in respect of organizations and establishments that transcend provincial territorial boundaries, the provincial quasi-judicial labour forums have no authority or jurisdiction to deal with labour disputes involving such organizations and the employees of such organizations and establishments for the purpose of labour disputes and claims rooted in labour law can only approach the National Industrial Relations Commission and not any provincial forum.
16. This means that the claims preferred by the respondents before the Authority under the Payment of Wages Act, 1936 were not maintainable and hence order dated 28.11.2012 rejecting applications filed under Order VII, Rule 11 CPC is set aside and declared to be of no legal effect and the applications filed by the petitioner bank are allowed and it is held that the claim filed by the respondents is not maintainable before the Authority under Payment of Wages Act, 1936. The respondents may instead approach the National Indust rial Relation Commission, if so advised.
17. Allowed in the above terms.