JUDGMENT SYED JAMSHED ALI, J. - This judgment will dispose of Writ Petitions Nos. 810, 812, 813 and 814 of 1995 as common questions of law and fact are involved in all these cases.' All the petitions are directed against the orders passed by the learned Labour Court and the learned Labour Appellate Tribunal directing reinstatement of respondent No. 1 in each case.
2. In Writ Petitions Nos. 808, 811, 813 and 814 of 1995, respondent No. 1 was employed by the petitioner Municipal Committee as PTC Teacher while Writ Petition No. 810/95 involves a vaccinator and Writ Petition No. 812/95 involves an Octroi Clerk. All these appointments were made on temporary basis for a period of 90 days which were extended expired respondent No. 1 was verbally told that his services were no longer required.
3. Respondent No. 1 filed a grievance petition before the learned Labour Court which was allowed vide order dated 19.3.1-992. Separate appeals were taken by the petitioner before the learned Punjab Labour Appellate Tribunal which were dismissed on 24.10.1994. The learned Labour Court and the learned Labour Appellate Tribunal found that by virtue of his continuous appointment for more than nine months respondent No. 1 had acquired the status of a permanent workman and, therefore, his services could not be terminated by an oral order. It was also found that the contesting respondent was appointed against a permanent post.
4. The learned counsel for the petitioner has contended that the petitioner, which is a local body, is not an "Establishment" or an "Industry" within the meaning of clauses (ix) and (xiv) of the Industrial Relations Ordinance (No. XXIII) of 1969 nor the contesting respondent was a "workman" and, therefore, the learned Labour Court had no jurisdiction. He next contended that the contesting respondent was appointed on purely temporary basis and extension was allowed on his on request and, therefore, the learned Labour Court had no jurisdiction to convert a temporary/ad-hoc appointment into a permanent appointment. He next contended that the contesting respondent was not appointed in the prescribed manner and, therefore, no right accrued in his favour to claim permanent appointment.
5. The learned counsel for the contesting respondent has submitted that the order passed by the learned Labour Court was implemented and acted upon. Reference was made to the order Annexure 'R-l ' and the entry in the service book 'Annexure R-2' and that substantial justice having been done, no case was made out for interference in exercise of discretionary Constitutional jurisdiction. .Reliance was placed on M/s. Siemens Pakistan Engineering Company Ltd., Karachi v.
Shahzad Saleem and 5 others (1997 PLC 44 (SC). He next contended that the appointment of the contesting respondent was made against a permanent post and if the petitioner committee had violated the rules in making temporary/ad-hoc appointment it could not be allowed the benefit of its on lapses. Reliance was placed on Secretary to Govt, of N.W.F.P. Zakat/Socio Welfare Department, Peshawar and another v. Sadullah Khan (1996 SGMR 413). Henext contended that after appraising the evidence, the learned Labour Court and the learned Labour Appellate Tribunal have reached a concurrent conclusion that the contesting respondent was appointed against a permanent post and was, therefore, a permanent workman in accordance with the provisions of Standing Order No. 1 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and, therefore, no interference is called for.
6. Attending to the objection of the learned counsel for the petitioner as to the jurisdiction of the learned Labour Court he contended that the question was not raised before the learned Labour Court and the learned Tribunal and, therefore, cannot be allowed to be raised for the first time in Constitutional jurisdiction. In support of this submission he placed reliance in Islam Din and 7 others v. Naseer-ud-Din (1995 SCMR 906), Habib Bank Ltd. v. Sind Labour Court No. I, etc. (NLR 1987 Labour 230), Mst. Kubra Bibi and another v. Abdul Huq and 7 others (1983 SCMR 737), Mst. Ghulam Fatima v.
Muhammad Hussain and 5 others (PLD 1976 SC 729) and Midway House (Pvt.) Ltd. Karachi v. Sindh Labour Appellate Tribunal and 2 others (1992 PLC 916).
7. He also placed reliance on .The Management of Municipal Committee, Mianwali v. The General Secretary, Municipal Muharrirs' Union and another (PLD 1968 Lahore 395), State Bank of Pakistan, Lahore through Chief Manager v. Ch. Muhammad Akhtar and 2 others (1998 PLC 506 (SC), Punjab Small Industries Corporation v. Punjab Labour Appellate Tribunal, Lahore and others (1988 SCMR 1725), Pakistan Television Corporation v. M. Babar Zaman and others (1989 SCMR 1549). National Shipping Corporation v. Sind Labour Appellate Tribunal and 2 others (1975 PLC 1), I.C.P. Employees'
Front, Karachi through its General Secretary v. Presiding Officer, Vth Sindh Labour Court, Karachi and another (PLD 1976 Karachi 1176) to contend that the Industrial Relations Ordinance applied to a Municipal Committee, State Bank of Pakistan, PTV Corporation, Punjab Small Industries Corporation, the National Shipping Corporation and the Investment Corporation of Pakistan.
8. I have considered die submissions made by the learned counsel for the parties. As far as the objection to the jurisdiction of the learned Labour Court is concerned, it does not appear to have been raised either before the learned Labour Court or before the learned Labour Appellate Tribunal.
The judgments cited by the learned counsel for the contesting respondent that it cannot be allowed to be raised for the first time in Constitutional jurisdiction apparently support his contention. However, in a number of cases it was held that a question of law could be raised even for the first time at any stage of the petitioner. Here the question being raised is one of jurisdiction and goes to the very route of the case. In the following cases it was held that a question of law can be raised at any stage of die proceedings, even before die highest Court:-
(i) Maha Prasad Singh and others v. Ramani Mohan Singh and others (AIR 1914 Privy Council 140);
(ii) Dr. Zulfiqar Haider v. Riaz Mahmud (PLD 1992 SC 238); (i.e) Shagufta Begum v. The Income Tax Officer, Circle-XI, Zone-B, Lahore (PLD 1989 SC 360) and
(iv) Haji Abdullah Khan and others v. Nisar Muhammad Khan and others (PLD 1965 SC .690).
In Ali Muhammad and others v. Muhammad Shaft and others v. Muhammad Shaft and others (PLD 1996 SC 292) it was held that consent cannot confer jurisdiction if a Court has none. I may observe that t is the duty of the Court or Tribunal before whom a lis is brought to apply the correct law and administration of justice according to law cannot be left to the litigants and their learned counsel. I may also refer to the following observations of the Hon'ble Supreme Court in Board, of Intermediate and Secondary Education v. Mst. Salma Afroze and 2 others (PLD 1992 SC 263) "that a Judge must know the adage that a Judge must wear all the laws of the country on the sleeve of his robe and failure of the counsel to properly advise him is not a complete excuse in the matter". The objection of the learned counsel for respondent No. 1 is, therefore, repelled.
9. The question when is a Municipal Committee was a "industry" stands authoritatively answered by the Hon'ble Supreme Court in Agriculture Workers Union Baluchistan vide. The Registrar of Trade Unions, Baluchistan, Quetta and others (1997 SGMR 66). It was also held in the said case that except for the functions of a "Municipal Corporation" which may fell within the ambit of its regal functions its other functions such as rendering civil service etc. Would be covered by the expression "Services" used in the definition of "industry" under the I.R.O. Ordinance. 1969. After exhaustively suring the case-law the Hon'ble Supreme Court noted the definition of the "Industry" as given in the case of Nagpur O)sporation (AIR 1960 SC 675) and relied upon the following paragraphs from the said judgment:- "17. The result of the discussion may be summarized thus; (1) The definition of 'industry' in the Act is very comprehensive. It is in two parts, one part defines it from the stand-point of the employer and the other from the stand-point of the employee. If an activity falls under either part of the definition, it will be an industry within the meaning of the Act. (2) The history of industrial disputes and the legislation recognizes the basic concept that the activity shall be an organized one and not that which pertains to private or personal employment. (3) The regal functions described as primary and inalienable functions of State though statutorily delegated to a corporation are necessarily excluded from the purview of the definition. Such regal functions shall be confined to legislative power. (4) If a service rendered by an individual or a private person would be an industry, it would equally be an industry in the hands of a corporation. (5) If a service rendered by a corporation is an industry, the employees in the departments connected with the service, whether financial, administrative or executive, would be entitled to the benefits of the Act. (6) If a department of a municipality discharges many functions, some pertaining to industry as defined in the Act and other non-industrial activities, the predominant functions of the department shall be the criterion for the purpose of the Act."
10. The functions of an Urban Local- Councils have been classified as compulsory and optional in the Punjab Local Government Ordinance (No. VI), 1979. Sections 52 to 87 prescribe the compulsory functions while Sections 88 to 125 prescribe optional functions. The compulsory functions are Public Health, Water Supply, Drainage, Private Markets, Slaughter House, Animals and Cattle, Education, Public Safety, Town Planning, Street Lights, Arboriculture, Social Welfare and Community Development, while the optional functions include Public Health, Dhobi Ghats, Ferries, Public Water Course, Fisheries, Supply of Milk, Public Markets, Animal Husbandry. Public Safety. Trees. Parks, Gardens and Forests. Culture, Education. Social Welfare. Urban Local Council. Police. The Predominant function of an Urban Local Council is. Therefore, provision of-services: This may or may not he for the purpose of making profit.
11". As observed by the Hon'ble Supreme Court in the case of Agriculture Worker Union supra the Industrial Relations Ordinance, is basically a beneficial legislation. Its object, inter alia, is to ameliorate the conditions of workers and, therefore, such legislation has to be construed liberally and beneficially and a restricted construction of the provisions of the I.R.O, would defeat the manifest intention of the legislature. I am, therefore, of the view that the employees of an Urban Local Council who are not performing any regal functions and are not excluded by the definition of a "worker" or "workmen" as defined in the Industrial Relations Ordinance. .1969 can invoke the provisions of Section 25-A of the I. R.O, for redressal of their individual grievances.. Therefore, the objection of the learned counsel that the petitioner-Committee was not an "industry" or that respondent No. 1 was not a workman has no merit and is repelled.
12. As far the other contentions of the learned counsel that respondent No. 1 was employed tin purely temp basis and, therefore, could not be declared as a permanent workman, it has no merit either. The learned Labour Court and-the learned Labour Appellate Tribunal, have on the basis of evidence, found that respondent No. 1 was employed against a permanent post. It was further held by the learned Labour Appellate Tribunal that the procedure adopted by the petitioner-Committee in appointing respondent No. 1 periodically for 90 days or less with a gap of one or two days, after every appointment is obviously in circumvention of law and cannot be countenanced. In reaching this conclusion judgments of the Hon'ble Supreme Court in Abdul Majid Sheikh Vs. Mushaffe Ahmed and another (PLD 1965 SC 208) and Pakistan International Airlines Vs. Sind Labour Court No. 5 and others (PLD 1980 SC 323) were, inter alia, relied upon. The view taken by the Hon'ble Supreme Court in the case of Secretary to Government of N. W.F.P. Zakat/Social Welfare Department, Peshawar and another supra also supports the contention of the learned counsel for the petitioner.
13. There is yet another aspect of the matter. Undisputedly, no formal order dispensing with the services of respondent No. 1 was passed. According to Standing Order No. 12(3) of the West Pakistan Industrial and Commercial Employment (Standing Order) Ordinance, 1968 the services of workmen cannot be terminated nor shall a workmen be removed, retrenched, discharged or dismissed from service except by an order in writing which shall explicitly state reasons for the action taken. The impugned oral ing respondent No. 1 from the service of petitioner-Committee was therefore, plainly illegal on this score as well.
14. While examining various provisions of Industrial Relations Ordinance and the Standing Orders Ordinance, I noticed that the definition of a "worker" and "workman" includes a person who has been dismissed, discharged, retrenched, laid-OF or otherwise removed from employment "in connection with or as a consequence of Industrial dispute or whose dismissal, discharge, retrenchment, lay-OF or removal has led to that dispute". The words underlined by me tend to show that unless removal etc. Of a worker was related to a industrial dispute, he could not be said to be a "worker" or "workman". However, by virtue of amendment of Standing Order No. 12(3) by virtue of Act XXIII of 1973, it was provided that a workman aggrieved by termination of his services or removal, retrenchment, discharging or dismissal may taken action in accordance with the provisions of Section 25-A of the Industrial Relations Ordinance, 1969 and thereupon the provision of the said section shall apply as they apply to the redress of an individual grievance. Therefore, even when dismissal etc. Of a workman is not related to an industrial dispute, he can invoke die provision of Section 25-A of the Industrial Relations Ordinance.
15. I see no merit in this petition, which is, accordingly, dismissed. The parties are left to bear their on costs.