' This writ petition calls in question the judgment of the Punjab Labour Appellate Tribunal dated 10- 2-1988 and the judgment of the Presiding Officer, Punjab Labour Court No,8, Bahawalpur dated 30- 9-1987, by virtue of which respondent No,3 has been re-instated in service.
2. The facts are that respondent No, 3 filed a petition under section 25-A of the Industrial Relations Ordinance, 1969, against his order of termination dated 22-1-1985. In the petition before the Labour Court, respondent No,3 had contended that he was a permanent worker under the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and the termination of his services was unlawful. He also contended that from the date of his initial appointment i,e, from 16-5-1982, he continued to work with the establishment of Fauji Fertilizer Company Ltd. And it was only with a view to circumvent the Industrial Laws that the establishment of FFC is said to engage a so-called contractor and started asserting that from April, 1983 respondent No,3 had ceased to be an employee of the establishment of the FFC and that he was only the employee of the contractor.
This contention of the employer was controverted by respondent No,3. The petitioner in this writ petition filed a reply before the Punjab Labour Court No,8, Bahawalpur and raised many objections.
It was contended that there was no relationship of employer and workman between the parties and that the Labour Court had no jurisdiction; that the grievance petition was time-barred; that the grievance notice had not been served; that the petition was bad for non-joinder and misjoinder of necessary parties and that the applicant before the Labour Court was estopped by his conduct to bring the petition. On facts, it was completely denied that the applicant before the Labour Court was ever in the employment of FFC.
3. After recording of evidence, Punjab Labour Court No,8. Bahawalpur accepted the grievance petition of respondent No,3 vide judgment dated 30-9-1987 and directed his reinstatement in service with full back benefits.
4. Aggrieved of this order of the Labour Court, and appeal was filed before the Punjab Labour Appellate Tribunal by the employer/writ petitioner which was decided vide order, dated 10-2-1988.
According to the said order of the Punjab Labour Appellate Tribunal, the order of reinstatement of respondent No,3 passed by Labour Court was upheld. However, the learned Appellate Tribunal disallowed the grant of back benefits.
5. In this writ petition, Mr. Masud Ashraf Sheikh, learned counsel for the petitioner has raised the following points:--
(i) That in order to approach the Labour Court under section 25-A of the I.R.O. 1969, it was incumbent upon respondent No,3 to have proved himself to be a worker as defined in section 2(xxviii) of I.R.O., 1969;
(ii) that the services of respondent No,3 were terminated otherwise than in connection with an industrial dispute and therefore, he had no locus standi to approach the Labour Court under section 25-A of the I.R.O., 1969 and for similar reasons, the said Labour Court had no jurisdiction in the matter;
(iii) that the establishment of the FFC was connected with or incidental to the Armed Forces of Pakistan and therefore, under section 1 (3) of the I.R.O., 1969, no provision of the Industrial Relations Ordinance applies to the writ petitioner and in this view of the matter, the judgments of both the lower fora were without lawful authority;
(iv) that the grievance notice filed by respondent No,3 was not within time in accordance with section 25-A and thus, the grievance petition before the Labour Court was not competent.
6. On the other hand, Mr. Muhammad Suleman Malik, Advocate for the respondent No,3 contended that the writ petition is not maintainable against the concurrent findings of the two Tribunals of exclusive jurisdictions. The learned counsel further contended that the stand of the petitioner.That the Labour Court had no jurisdiction as I.R.O., 1969, was not applicable to the petitioner/establishment under section 1(3) was misconceived,. This objection was not raised either before the Labour Court or Punjab Labour Appellate Tribunal and that this question cannot be raised for the first time in writ jurisdiction. He also submitted that the concurrent findings of fact that respondent No,3 was an employee of the petitioner cannot be upset in these proceedings.
7. Arguments heard. Record perused.
8. The learned counsel for the petitioner in support of his contention that a person whose services have been terminated otherwise than in connection with an industrial dispute cannot approach the Labour Court cited the case of Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR. 2213 and Allied Bank of Pakistan Ltd. v. Punjab Labour Appellate Tribunal and others 1996 PLC (C.S.) 702. This submission of the learned counsel for the petitioner is misconceived. While making this submssion, the effect of the provisions of Standing Order 12(3) have been completely overlooked. Standing Order 12(3) (Standing Orders) Ordinance, 1968 reads as under:-- "12(3). The services of a workman shall not be terminated, nor shall a workman be removed, retrenched, discharged or dismissed from service, except by an order in writing which shall explicitly state the reason for the action taken. In case a workman is aggrieved by the termination of his services or removal, retrenchment, discharge or dismissal, he may take action in accordance with the provisions of section 25-A of the Industrial Relations Ordinance, 1969 (XXIII of 1969) and thereupon the provisions of the said section shall apply as they apply to the redress of an individual grievance."
9. According to this provision of law, when an employee covered under Standing Orders Ordinance is'aggrieved by the termination etc., of his service, he can take action in accordance with the provisions of section 25-A of the I.R.O., 1969, whereupon the provisions of the said section shall apply as they apply to the redress of an individual grievance. This provision of law amounts to legislation by reference or legislation by incorporation.
' At this juncture, it may also be stated that the West Pakistan Standing Orders Ordinance, 1968 originally contained Standing Order 18 under which any person aggrieved of any cause of action under the Standing Orders Ordinance, 1968 could redress his grievance. This Standing Order 18 concerning the grievance procedure was omitted by Ordinance IX of 1972. By the same Ordinance, section 25-A of the I.R.O., 1969 was promulgated.
10. The net result is that the grievance procedure originally contained in Standing Order 18 was replaced by the grievance procedure now contained in section 25-A of the I.R.O., 1969. It was in this view of the matter, the Standing Order 12 (3) was suitably amended by Act XXIII of 1973. By virtue of which the procedure of section 25-A was applied by reference to grievance arising under Standing Order Ordinance, 1968.
11. The Trustees of the Port of Karachi's case (supra) cited by the learned counsel for the petitioner is distinguishable as the question involved in the said case was that Karachi Port Trust Act (VI of 1886) provided for statutory rules which governed the employee of the Karachi Port Trust. These were the KPT Officers and-Services (Efficiency and Discipline) Rules. By virtue of Act (VI of 1886) and the rules mentioned above, the application of the West Pakistan Industrial and Commercial (Standing Orders) Ordinance, 1968 was excluded by means of the proviso to section 1 of the said Ordinance.
As the Standing Orders Ordinance stood excluded, the question in the case of Trustee of the Port of Karachi was the scope of applicability of section 25-A of the I.R.O., 1969 divorced from the provisions of the Standing Orders Ordinance, 1968.
12. It is not disputed that in the present case, the Standing Orders Ordinance, 1968 is applicable to the establishment of the petitioner. That being so, respondent No,3 was justified in invoking the jurisdiction of the Labour Court under section 25-A of the I.R.O., 1969 read with Standing Order 12(3) of the Standing Orders Ordinance, 1968.
13. There is another aspect of this case which has been overlooked by the learned counsel for the petitioner. Standing Order 12(3) provides that when action is taken before the Labour Court under section 25-A of the I.R.O., 1969, the provisions of the said section shall apply as they apply to the redress of an individual grievance. By reference, when we examine the manner in which individual grievances are to be redressed under section 25-A of the I.R.O., 1969, we find under section 25-A (4) that the said matter shall be treated as if such matters were in an industrial dispute. Thus, viewing from whatever angle, the conclusion is inescapable that an employee of an establishment covered under the Standing Orders Ordinance, 1968 can take his grievance to the Labour Court under section 25-A of the I.R.O., 1969, if he is aggrieved of an action which is in violation of the rights guaranteed to him under the law.
14. The next contention of the learned counsel for the petitioner that the petitioner/establishment was connected with or incidental to the Armed Forces of Pakistan and thus, the application of I.R.O.
Was excluded, is also devoid of force. Firstly, this objection was neither taken before the Labour Court or before the Punjab Labour Appellate Tribunal. Such objection cannot be taken for the first time in writ jurisdiction. Secondly, this objection is not available to the petitioner. Assuming for the sake of argument that the petitioner/establishment is connected with or incidental to the Armed Forces of Pakistan, it would not advance the case of the petitioner in the instant matter. As discussed earlier, respondent No,3 on the basis of the rights secured and guaranteed to him under the Standing Orders Ordinance, 1968 validly approached the Labour Court through the mechanism provided under the Standing Order. 12(3), for which purpose, the applicability of I.R.O., 1969 independently was not required. The reliance placed by the learned counsel for the petitioner on the case of Zainul Abidin v. Col. (Retd.) Feroze Hussain, Senior Manager (Admn.), Army Welfare Trust Cement Plant, Nizampur 1998 PLC 32 is not apt. In that case, the matter was confined to the rights and obligations arising from the provisions of the I.R.O., itself. The question was whether a trade union can be lawfully registered in the establishment of Army Welfare Trust under I.R.O. In the present case, as the rights of respondent No,3 stem from and are based upon the Standing Orders Ordinance, 1968, the ratio of the said order of NIRC would be irrelevant.
15. As far as the findings of the Labour Court and the Labour Appellate Tribunal upon the question of fact are concerned, not much can be urged in this writ petition. It has been found by both the Tribunals that respondent No,3 was an employee of the FFC/petitioner and that the contention that at one time he was the employee of the petitioner/establishment and after 1983, he became the employee of an independent contractor has been rejected. It is admitted that respondent No,3 was engaged as a driver of a tractor owned and operated by the petitioner/company where he worked for object and purpose of the petitioner in performance of his duties. Reverting to the classifications of workman as given in the Schedule to the Standing Orders Ordinance, 1968, it is stated that a permanent workman is a workman who has been engaged on work of permanent nature likely to last more than 9 months. Admittedly, respondent No,3 has worked continuously since May, 1982 uptil the date of his wrongful termination. In this context, the stand of the petitioner has been vacillatory. In the written statement before the Labour Court, the petitioner completely denied that respondent No,3 was ever an employee of the petitioner. Later, they took up the stand that though he was initially employed by the FFC but in April, 1983, respondent No,3 became the employee of the contractor. There is no evidence forthcoming upon this contention on the record.
16. It is in this context that the objection of limitation raised by the petitioner is frivolous. The grievance notice as held by the Labour Court as well as Labour Appellate Tribunal was within time and so the grievance petition was competent.
17. The concurrent findings of fact arrived at by both the Courts of exclusive jurisdiction do not suffer from any misreading or non-reading nor has any such error been indicated.
18. In view of the foregoing, the writ petition has no merit which is dismissed. The parties to bear their own costs.