This constitutional petition under Article 199 of the Constitutions is directed against the order of Labour Court No. 6, Hyderabad passed on an application under section 25-A of Industrial Relations Ordinance, 1969 filed by one Khushal Khan for his re-instatement in service with full back benefits and payment of his dues including cost of living allowance.
2. It was the case of the respondent Khushal Khan that he was employed as a motor mechanic in the garrage of petitioner Fazal Illahi on monthly salary of Rs. 200. The petitioner neither paid him cost of living allowance nor the increase in salary as ordered by the Government from time to time.
Thus from August, 1973 to 30th June, 1976 Rs. 2,833.33 became due to him. This amount was refused to him by the petitioner who turned him out from service. The case before the lower Court proceeded ex parte as neither petitioner nor his Advocate happened to be present on the date of hearing. The application was accordingly allowed by the Labour Court and the petitioner was ordered to pay the arrears of wages amounting to Rs. 2,833.33 and the respondent was directed to be re-instated in services by the petitioner with all the back benefits. The appeal filed by the petitioner was dismissed as time barred and the revision filed before the labour appellate Tribunal, Karachi who also dismissed as there was no order passed on merits in appeal.
3. It has been argued by Mr. Mushtak Hussain on behalf of the petitioner that the Labour Court had no jurisdiction to entertain the application of respondent Khushal Khan under section 25-A of the Industrial Relations Ordinance. That the order of the Labour Court was, therefore, without jurisdiction. It has been pointed out that petitioner Fazal Illahi was carrying on his work as a motor mechanic and he was not maintaining any Industrial establishment as such.' That under Order 12
(3) of the Standing Orders Ordinance if the services of a workman are terminated and he is aggrieved he could proceed under section 25-A of the Industrial Relations Ordinance, 1969. But West Pakistan Standing Orders Ordinance, 1968 was applicable only to a workman employed in any industrial establishment. According to Order 1 (4-a) the Ordinance extended to an industrial establishment wherein 20 or more workmen were employed. In the present case even according to the affidavit of Khusbal Khan filed before the Labour Court besides himself there were only 2 or 3 other workmen employed in the garrage of the petitioner. Under the circumstance section 25-A of the Industrial Relations Ordinance was not available to Khushal Khan who was not working in an industrial establishment as contemplated under the Standing Orders Ordinance, 1968. Mr. Mushtak Hussain has quoted 1977 PLC 223 to show that burden was on the worker to prove that in the establishment where he worked 20 or more workmen were employed. 1976 PLC 271 was another decision on the same point. A similar case on the same point would be 1978 Y L C 420.
4. Respondent Khushal Khan has not appeared in person though he has been served. He is represented by one Mr. Wahid Bux, General Secretary, Bangles Labour Union, Mr. Wahid Bux has argued on behalf of the respondent that although the case of the respondent does not fall under Order XII of the Sanding Orders Ordinance, his case would come within the purview of section 19 of the West Pakistan Shops Establishment Ordinance, 1969 and he could in that case make an application under section 25-A of the Industrial Relations Ordinance. Under the Shops Establishment Ordinance for terminating the services of a permanent employee, it is necessary to give one month's notice in writing or to give one month's wages is lieu of notice. There is, however, no provision for re-instatement and back benefits. It is also doubtful if the cost of living allowance and the arrears could be claimed by an employee by filing a petition before the Labour Court when he is not a worker within the meaning of Standing Orders Ordinance. Under the Shops Establishment Ordinance, section 12, a special forum is provided where such claims could be filed.
The Government may by notification in the official Gazette appoint any person to be the authority to hear and decide all claims arising out of non-payment of wages of employees.
5. It has then been stated that the appeal and revision having been dismissed as time barred, the petitioner could not circumvent the bar by filing a constitutional petition. However, this is not a case where the decision has been challenged as a wrong decision, but it has been shown that the Labour Court had no jurisdiction to entertain the application of an employee under the Shops Establishment Ordinance.
6. Thus the orders passed by Labour Court No. 6. Hyderabad directing reinstatement of the respondent with back benefits would appear to be an order passed without jurisdiction. It will, therefore, have no legal effect. It would be open to the respondent to seek remedy from a proper forum for his claim regarding cost of living allowances, arrears of wages or wages in lieu of notice if he can still do so under the law.
7. This petition is accordingly allowed.