' The petitioner is a Banking Company. Respondent No,2 was formerly Vice-President of the petitioner. His services were terminated vide letter dated 22-9-2001. At the time of his termination respondent No,2 was drawing a salary package of Rs,1, 24,501 per month. Among other things, he was also entitled to the facility of a personal chauffeur provided by the petitioner-Bank. As a senior officer of the Bank respondent No,2 exercised decision making powers independently and also had authority over subordinate staff.
2. One week after his dismissal, on 27-9-2001 respondent No,2 invoked the provisions of section 34 of the Industrial Relations Ordinance (IRO) by filing a petition before the Punjab Labour Court No,I.
The petition prayed for the setting aside of the order dated 22-9-2001 whereby the services of respondent No,2 were terminated. It was also prayed that he be reinstated in employment and be allowed to continue in service till the age of superannuation. Throughout the petition the grievance of respondent No,2 is that of an employee vis-a-vis the Bank as his employer.
3. The aforesaid petition under section 34 for the I.R.O. Was resisted by the Bank on various grounds.
It was, in the first instance, contended that the Labour Court could not assume jurisdiction in the matter because even from the contents of the petition under section 34, it was clear that respondent No,2 was not entitled to file a petition thereunder. The Bank also filed a separate application requesting the Labour Court to frame a preliminary issue to decide as to whether it had jurisdiction in the matter. The said application was rejected vide order dated 7-12-2001.
4. I have gone through the record with the assistance of learned counsel and have also considered their respective arguments. In order to appreciate the contention between the parties it is first of all necessary to examine the provisions of section 34 of the I.R.O. Which reads as under:-- "Application to Labour Court.--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."
5. It is clear from the aforesaid statutory provision that only a collective bargaining agent or any employer can apply to a Labour Court thereunder and such application can only be made to enforce a right guaranteed or secured under any law or any award or settlement.
6. It was argued by learned counsel for respondent No,2 that the said respondent was an employer and was, therefore, entitled to invoke the provisions of section 34 aforesaid. It cannot be disputed that if the status of respondent No,2 is considered within the hierarchy of employees of the petitioner-Bank, the respondent No,2 falls in the top-most echelons of the Bank and, as such, would be an employer vis-a-vis persons subordinate to him. He, however, was an employee of the Bank and it is this status which is material in the present case. As noted above, in the petition moved by him, respondent No,2 has not, at any point, asserted his status as an employer. This is for the obvious reason that his grievance in the petition, is as an employee of the petitioner-Bank. It is clear that the employer in the present case, is the petitioner-Bank and not respondent No,2. In these circumstances, I am not in any doubt that the provisions of section 34 of the I.R.O. Which can be invoked by an employer, are not available to respondent No,2 in his capacity as an employee.
7. In addition to the above, even if it is, for a moment, conceded that respondent No,2 could be treated as an employer in the context set out in his petition, section 34 will only become available to him if he can show that there are rights guaranteed or secured to him by or under any law or any award or settlement. In order to determine if any such rights were guaranteed to respondent No,2 under any law, award or settlement, I need to go no further than the petition itself. At its head, the petition purports to have been filed under section 34 of the I.R.O. Against. The termination order dated 22-9-2001. The petition does not refer to any law or any award whereunder rights are claimed by respondent No,2. In paragraph No,2 of the petition, however, it is asserted that respondent No,2 is governed by a settlement of employment which is Annexure A to the petition, and by the Staff Service Rules and the Bank Employment Policy of the petitioner-Bank. The aforesaid settlement of employment is no more than the appointment letter dated 31-10-1996 issued to respondent No,2 by the petitioner-Bank. The said letter read with the Staff Service Rules and the Bank's Employment Policy cannot, by any stretch of reasoning, be termed as a settlement.
The term "settlement" has been defined in section 2(24) of the IRO. The defined terms has been used in section 26 of the I.R.O.. These two provisions give us a fair idea of what is meant by the term "settlement". In order to appreciate its connotation sections 2(24) and 26 of the I.R.O. Reproduced as under:-- "2(xxiv) 'settlement' means a settlement arrived at in the course of conciliation proceeding, and includes an agreement between an employer and his workmen arrived at otherwise than in the course of any conciliation proceeding, where such agreement is in writing, has been signed by the parties thereto in such manner as may be prescribed and a copy thereof has been Sent to the Provincial Government, the conciliator and such other person as may be prescribed."
"26. Negotiations relating to differences and disputes. --(1) If at any time an employer or a collective bargaining agent finds that an industrial dispute has arisen or is likely to arise, the employer or, as the case may be, the collective bargaining agent. May communicate his or its views in writing either to the Works Council or to the other party so, however, that, where the views are so communicated to the Works. Council, a copy of the communication shall also be sent to the other party.
(2) On receipt of the communication under subsection (1), the Works Council or the party receiving it shall try to settle the dispute [by bilateral negotiations within ten days of the receipt of the communication or within such further period as may be agreed upon by the parties] and, if the parties reach a settlement. a memorandum of settlement shall be recorded in writing and signed by both the parties and a copy thereof shall be forwarded to the Conciliator and the authorities mentioned in clause (xxiv) of section 2.
(3) Where a settlement is not reached between the employer and the collective bargaining agent, or if the views of the employer or collective bargaining agent have been communicated under subsection (1) to the Works Council, there is a failure of bilateral negotiations in the Works Council the employer or the collective bargaining agent may, within [seven] days from the end of the period referred to in subsection (2) serve on the other party to the dispute a notice of lock-out or strike, as the case may be, in accordance with the provisions of this Ordinance."
8. The term "settlement" has been interpreted in various precedents including the case titled Pakistan Cycle Industrial Cooperative Society Ltd. v. Punjab Labour Appellate Tribunal and others (1983 PLC 1215). The aforesaid said legal provisions and precedent support the contention of learned counsel for the petitioner-Bank that the term "settlement" has a specific meaning which does not encompass the respondent's letter of employment, Staff Service Rules and the Employment Policy of the petitioner-Bank. For this reason also the learned Labour Court could not have exercised jurisdiction in the matter under section 34 of the I.R.O.
9. It was also argued by learned counsel for respondent No,2 that the question of jurisdiction of the learned Labour Court was a mixed question of law and fact which could only be determined after evidence of the parties had been recorded. This contention has no merit in the context of the present case. Even if the contents of the respondent's petition under section 34 are accepted as being correct, it is clear, for the reasons discussed above, that learned Labour Court has no jurisdiction in the matter.
10. It was next contended by learned counsel for respondent No,2 that the learned Labour Appellate Court should be allowed to determine the question of its jurisdiction. He argued that a Constitutional petition, in the circumstances, was not maintainable. In response, learned counsel for the petitioner-Bank submitted that where, on the face of the record, a forum lacked jurisdiction, an aggrieved party could approach the High Court in exercise of its Constitutional jurisdiction to seek appropriate directions in the matter. In support of this contention, learned counsel referred to the case titled Sindh Emploxees' Social Security Institution v. Dr. Mumtaz Ali Taj and another (PLD 1975 SC 450), the case titled Farman Ullah Khan v. Agricultural Development Bank of Pakistan through Manager, Tank Branch, District Tank and 2 others (PLD 2000 Pesh. 10) and the case titled Ghulam Muhammad and others v. Munir Ahmad Shah and others (1994 CLC 14). I have gone through the cited precedents which, I find, are applicable to the circumstances of the present case.
Based on these precedents, I am clear that the Constitutional jurisdiction of the High Court is available to the petitioner-Bank because quite clearly as discussed above, the learned Labour Court lacks, jurisdiction in the matter. I, therefore, do not see any reason why the petitioner-Bank should be compelled to join the proceedings before the learned Labour Court, when the respondent's own petition is sufficient to establish want of jurisdiction in the said Court.
11. Finally it was contended by learned counsel for the respondent that section 38 of the I.R.O.
Provided an adequate alternate remedy to the petitioner-Bank by way of revision before the Labour Appellate Tribunal. I have examined section 38 and find that it does not afford any remedy to the petitioner-Bank as of right. The Labour Appellate Tribunal is merely vested with supervisory jurisdiction over Labour Courts which jurisdiction is exercisable by the Appellate Tribunal suo motu and is not available to the petitioner-Bank. I am fortified in this view by the decision of a learned Division Bench of the Sindh High Court in the case titled Muhammad Ramzan v. Trustees of Port of Karachi (1990 CLC 1086).
12. For the foregoing reasons, this petition is allowed and it is declared that the learned Labour Court has no jurisdiction to entertain or proceed with the petition, filed by respondent No,2 under