2018 PLP 113 (PLC)

MUHAMMAD SAJID MEHMOOD SETHI, J.

Through instant petition, petitioner has assailed judgment dated 27.06.2016, passed by learned Punjab Labour Appellate Tribunal, Lahore ("Appellate Tribunal"), whereby revision petition, filed by respondent No.2, against order dated 02.05.2016, passed by learned Punjab Labour Court No.5, Sargodha ("Labour Court"), was accepted.

2. Brief facts of the case are that petitioner filed a grievance petition before learned Labour Court, seeking his reinstatement into service, stating therein that he was not being paid salary as per his appointment letter and his services were also not regularized. It was alleged that upon agitation of petitioner, his services were terminated through verbal order w.e.f. 16.09.2006. Respondents Nos.2 and 3 contested grievance petition by filing written reply. Learned Labour Court, after recording evidence accepted the grievance petition vide order dated 09.04.2007, whereby respondents were directed to reinstate petitioner in service with all back benefits. Feeling aggrieved, respondents assailed said decision in appeal before learned Appellate Tribunal, which was dismissed vide judgment dated 24.04.2013. Petitioner filed application for implementation of above decisions before learned Labour Court, wherein respondents Nos.2 and 3 filed application under Order VII, Rule 10, C.P.C., which was rejected vide order dated 02.05.2016. Respondents Nos.2 and 3 assailed said order in revision before learned Appellate Tribunal, which was allowed vide order dated 27.06.2016. Hence, this petition.

3. Learned counsel for petitioner submits that impugned judgment dated 27.06.2016, passed by learned Appellate Tribunal, is absolutely illegal and without any lawful justification. He further submits that impugned judgment is not sustainable in view of the law laid down in Air League of PIAC Employees through President v. Federation of Pakistan M/O. Labour and Manpower Division Islamabad and others (2011 SCMR 1254), Shahid Perwaiz v. Messrs Galaxo Klin Pakistan Ltd. and others (2016 SCMR 30) and Glaxo Smith Kline Pakistan Limited through Group Industrial Relations Manager/Notified Factory Manager v. Sindh Labour Appellate Tribunal Sindh and 2 others (2013 PLC 183).

4. Conversely, learned counsel for respondents Nos.2 and 3 contends that order dated 02.05.2016 passed by learned Punjab Labour Court No.5, Sargodha, is contrary to the dictum laid down by the Hon'ble Supreme Court of Pakistan in Pakistan Telecommunication Company Ltd. v. Member NIRC and others (2014 SCMR 535 = 2014 PLC 203), wherein it was specifically held that after the promulgation of Industrial Relations Act, 2012, the jurisdiction regarding the cases of trans-provincial establishments lies with NIRC and no other Court has the jurisdiction to decide the matters of that establishment, therefore, impugned judgment is liable to be upheld on this score alone.

5. Arguments heard. Available record perused.

6. The operative part of judgment dated 27.06.2016, passed by learned Appellate Tribunal, is reproduced as under:- "

8. The sole ground raised by the learned counsel for the petitioner was that the petitioner establishment is a trans-provincial establishment and learned Labour Court below lack jurisdiction in the matter. He has also prayed that under the provisions of IRA, 2012 this matter be transferred to the NIRC for further adjudication.

9. Perusal of record reveals that the petitioner establishment has been running its business in the province of Punjab as well as in the province of KPK. The Hon'ble Lahore High Court, Lahore vide its order dated 23.5.2012 in C.O. No.4/12 has already passed a merger order of the petitioner establishment thereafter learned counsel for the petitioner rightly pointed out before the learned Labour Court below that the petitioner establishment has fallen in the category of trans-provincial establishment. Therefore, the learned Labour Court below lacks jurisdiction in the matter but the application under Order VII, Rule 10, C.P.C. filed by the petitioner establishment was declined.

10. In view of the above circumstances, this revision petition is accepted impugned order is set aside and as requested by learned counsel for the petitioner the proceedings pending against the petitioner establishment before the learned Punjab Labour Court No.5, Sargodha are transferred to NIRC for further adjudication."

7. Undisputedly, the controversy in hand has already been laid to rest by the Hon'ble Apex Court in the case of Pakistan Telecommunication Company Ltd. supra, which has also been followed by this Court in judgment dated 10.09.2015, announced in open Court on 23.09.2015 in W. P.No.13390 of 2010 titled The President Allied Bank Ltd. etc. v. The Punjab Labour Appellate Tribunal, etc., the operative part of which is reproduced as under:- "

12. Insofar as grievance of the Bank regarding issuance of status-quo order for a specific period (subject matter of W,P.No.24533 of 2010) is concerned, suffice it to observe that in terms of section 57 (2)(b) of IRA, 2012 a Labour court or the Labour Appellate Tribunal has no jurisdiction to deal with any matter relating to an industrial dispute of trans-provincial establishments. The said view also finds support from the case reported as Pakistan Telecommunication Co. Ltd. v. Member NIRC and others (2014 SCMR 535). "

11. In the same provision, vide clause (2)(b), the Commission has been empowered to withdraw from a Labour Court of a Province any applications, proceedings or appeals relating to unfair labour practice, which fall within its jurisdiction; and (c) grant such relief as it may deem fit including interim injunction. A proviso has been added to the above provision, to following effect:- "Provided that no Court, including Labour Court shall take any action or entertain any application or proceedings in respect of a case of unfair labour practice, which is being dealt with by the Commission." The ratio decidendi of afore-quoted judgment of the august Supreme Court of Pakistan is that the Labour Court or the Labour Appellate Tribunal has no jurisdiction to deal with any matter after promulgation of IRA, 2012.

13. As a necessary corollary to the discussion made in the afore-going paragraphs, I have no hesitation to hold that the orders impugned in these petitions are coram non judice as the Punjab Labour Appellate Tribunal had no jurisdiction to deal with the matters under discussion on the fateful day due to repeal of IRA, 2008 in view of sunset clause contained under section 87(3) ibid. Moreover, after promulgation of IRA, 2012, neither the Labour Court nor the Labour Appellate Tribunal had any jurisdiction to deal with any dispute arising out of any grievance relating to service of a person who is employee of a trans-provincial establishment.

14. Consequently, all these appeals are accepted, impugned orders are set aside and the appeals filed by the Bank as well as that of respondent No.3 would be deemed to be pending before the Punjab Labour Appellate Tribunal, However, both the parties shall be at liberty to move an application for their transfer to NIRC in terms of section 57(2)(b) ibid, No order as to cost."

8. So far as the case law cited by learned counsel for petitioner is concerned, suffice it to say that same is on distinguishable facts and circumstances and is not relevant to the controversy in hand.

9. Resultantly, following the ratio settled in the case of Pakistan Telecommunication Company Ltd. supra, instant petition is dismissed with no order as to costs. MQ/A-106/L Petition dismissed.