1. ' MRS. MAJIDA RAZVI, J.--The question raised through this petition is whether the Provisions of section 34, of the I.R.O., 1969 can only be invoked for the enforcement of any pre-existing rights guaranteed or secured to the employer or to the Collective Bargaining Agent of workmen under any law or award or settlement?
2. The petitioners is a multinational Pharmaceutical Company which had employed the respondent No,2, Malik Ghulam Sarwar Khan initially as charge hand in 1966 and who after subsequent promotion was holding the post of Welfare Executive with job description of supervision and control of security and safety of the staff, transport, canteen etc. Admittedly, he was performing such duties that he has been accepted as 'employer' for the purposes of this case. The respondent No,2, who is admittedly a member of Peoples Party participated in political agitation in the year 1983 and was arrested on 21-8-1983 and was detained in jail as he was convicted under Martial Law for nine months. Admittedly, the arrest of respondent No,2 was intimated to the petitioner through his cousin who after waiting for about four months terminated the service of respondent No,2 on 4-1-1984, by way of discharge with full benefits of service. It was also submitted that the respondent NO.2 never communicated with the petitioner nor applied for any leave or any intimation was set as to when he will be able to join. Respondent No,2 was released from jail in September, 1984 and sent a legal notice, dated 13th September, 1984, demanding his re-instatement which was replied under letter, dated 1-10-1988. The respondent filed an application dated 10-11-1985 under section 34 of the Industrial Relations Ordinance, 1969, before the 3rd Sindh lab our Court, Karachi and after notice having been served on the petitioner, the petitioner filed its preliminary legal objections to the maintainability of the said application.
3. After hearing both the parties the learned IIIrd Sindh Labour Court dismissed the said application being not maintainable in law. Against this order appeal was filed on 10-12-1986 before the respondent No,1, Sindh labor Appellate Tribunal, who after hearing the parties vide order, dated 3- 10-1988 allowed the appeal and directed the petitioner for reinstatement of the respondent No,2 in service. Hence the petition.
4. ' The main thrust of arguments the counsel for the petitioner was that the impugned order is without lawful authority, illegal, null and void. According to his submissions the provisions of section 34 of the Industrial Relations Ordinance could only be invoked for the enforcement of any pre- existing right guaranteed or secure to the employee or to the bargaining agent of workmen under any law or award or settlement, whereas the impugned order is neither based on any statute or award or settlement and he relied on the case of Habib Bank Limited and others v. Syed Ziaul Hassan Kazmi (1998 SCM R 60), wherein distinction was made between the said case and the case of Mrs. Anisa Rehman v. P.I.A.C. (PLD 1994 SC 2232) and held "the ratio of the judgment in the case of Mr. Anisa Rehman (supra) is that a Corporation cannot demote its employee to a lower grade without hearing him/her before passing demotion order. It has not deal with the question of termination of services of suspension order.
5. ' In the case of Habib Bank Limited, the bank had served suspension orders against some of its employees and the said employees had filed writ petition against the said suspension order and the learned Judge after hearing the petition, suspended the operation of the aforesaid suspension order. Against this interlocutory order the bank had approached the Supreme Court by way of petition for leave to appeal. It was argued on behalf of the Bank that under the terms and conditions the relationship between the two is that of Master and Servant and leave was granted to consider whether the High Court was justified in suspending the order of suspension of bank employees and the Supreme Court suspended the order passed by the learned High Court. In the case of United Bank Limited and others v. Ahsan Akhtar and others (1998 SCM R 68) it was held that "it had been consistent held by this Court inter alia in cases referred to hereinabove Para. 8(i) to
(viii) that relationship between a Corporation and its employees was that of master and servant and that the remedy for wrongful termination of service of an employee was a suit for damages and not relief for re-in statements.
6. ' It was also argued on behalf of the petitioner that the prayer in the appeal was for remand of the case and not for re-instatement whereas the learned Appellate Tribunal has acted beyond the relief claimed in appeal and had passed order, for re-instatement of the respondent No,2.
7. To appreciate the point raised in the petition it will be helpful if section 34 of the Industrial Relations Ordinance, 1969 is reproduced:-- "(34)Application to Labour Court.--Any Collective Bargaining Agent or any employer may apply to the lab our Court for the enforcement of any right guaranteed or secured to it or him by or under any law or any award or settlement."
8. ' The bare reading of the section clearly spells out that any collective bargaining agent or any employer may apply to the Labour Court for the enforcement of any right guaranteed or secured to it or him by or under any law or any award or settlement as such the right has to arise under some law or award or settlement. In the present case where most of the facts are admitted except according to the petitioner the respondent No,2 courted arrest during the demonstration. Clause
(13) of the letter, dated 6-10-1988 appointing the respondent No,2 as Welfare Executive and giving other details of terms and conditions is as under:-- "13 Your appointment is subject to one month's prior notice of termination to be given in writing by either party."
9. ' The above terms clearly specified the terms between the petitioner and respondent No,2 and as such if any right accrued to the respondent No,2 it was under this appointment letter/contract to receive a month's notice in writing for the purposes of termination of service which leads to the fact that relationship between the petitioner and the respondent No,2 were that of master and servant.
10. Admittedly, the respondent No,2 has been paid for the one month's notice period. The counsel for the respondent No,2 could not place any material before us, apart from what was there on the record, to indicate as to under which law or award or settlement the right has accrued to the respondent No,2 to entitle him to invoke the jurisdiction of the lab our Court under section 34 of the Industrial Relations Ordinance except that he being an employer had no alternative remedy except section 34 of the Industrial Relations Ordinance, 1969.
11. ' Under the circumstances of the case and as held, in various cases and the case of U.B.L. and others v. Ahsan Akhtar (1998 SCM R 60) in our opinion the respondent No,2 being an employee of a Corporation/Company and his service being subject to a contract, if aggrieved due to his termination of service, could initiate proceedings for damages before appropriate forum but not before the lab our Court under section 34 of I.R.O. The above are the reasons for our short order, dated 5-10-1998 allowing the petition and setting aside the impugned appellate decision, dated 3- 10-1988.