2014 PLP 331 (PLC)

SHEZADA MAZHAR J.

Through the present writ petition, the petitioner has challenged the order dated 29-2-2012 passed by the learned Presiding Officer of Punjab Labour Court No.IV, Faisalabad as well as judgment dated 25-2-2013 passed by the Punjab Labour Appellate Tribunal, Lahore on the ground that after the promulgation of Industrial Relations Act, 2012 (IRA, 2012), the Punjab Labour Court No.IV, Faisalabad as well as the Punjab Labour Appellate Tribunal, Lahore had no jurisdiction to adjudicate upon the matter of the petitioner as the petitioner is a workman of an organization which is a trans-provincial establishment.

2. Facts necessary for the disposal of the present writ petition are that the petitioner joined the service on 24-5-2005 as Officer Grade-III with the respondent/bank. Unfortunately, the petitioner was served charge sheet dated 1-7-2008 levelling some allegations. The petitioner replied the same and specifically refuted all the allegations, however, the respondent/bank did not agree with the statement made by the petitioner and after holding an enquiry declare that the petitioner was negligent, therefore, major penalty of termination from service was imposed upon the petitioner vide order dated 23-9-2008. The petitioner challenged the said termination order before the respondent/bank in shape of mercy appeal, however no positive response was given by the respondents/ bank. Therefore petitioner filed grievance petition before the Punjab Labour Court No.IV Faisalabad, which was dismissed vide order dated 29-2-2012 allegedly on wrong assumption. Feeling aggrieved with the said order, the petitioner filed appeal before the Punjab Labour Appellate Tribunal, Lahore, which too was dismissed vide impugned order dated 25-2-2013, hence, the present writ petition.

3. Learned counsel for the petitioner submits that the appeal before the Punjab Labour Appellate Tribunal, Lahore was filed under section 33(6) of Punjab Industrial Relations Act, 2010, however, during the pendency of the said appeal, the Industrial Relations Ordinance, 2011 was promulgated subsequently the same become IRA, 2012 and under the said Act, the National Industrial Relations Commission (NIRC) was established to deal with the cases of trans-provincial establishment. Submits that several cases were transferred to the NIRC on promulgation of the IRA, 2012 however, the case of the petitioner was decided despite the fact that the case of the petitioner was also relating to the Trans-Provincial Establishment. Submit that petition was decided despite the fact that the petitioner was also a workman of trans-provincial establishment. Submits that after promulgation of the IRA, 2012, respondent No.1 becomes coarm non-judice and the impugned order passed by it is liable to be set-aside. Learned counsel for the petitioner has relied upon the judgment dated 4-2-2014 passed by the Hon'ble Supreme Court of Pakistan in Civil Appeal No.407 of 2013 wherein the issue of trans-provincial establishment was considered and it was held that in matters which relate to trans-provincial establishment, the NIRC had the jurisdiction to entertain such like matters.

4. On the other hand, learned counsel for the respondents submits that the judgment of the Hon'ble Supreme Court referred to by the learned counsel for the petitioner does not relate to the pending proceedings and the same is not applicable to the case in hand. Further submits that the petitioner's grievance petition was barred by time and therefore the order passed by the forums below is in accordance with law.

5. Arguments heard. Record perused.

6. The main contention of the learned counsel for the petitioner is that after the promulgation of the IRA, 2012 the Punjab Labour Appellate Tribunal had no jurisdiction to adjudicate upon the controversy as under law the jurisdiction to entertain grievance petition of employees of trans-provincial establishment vested with NIRC.

7. From the perusal of record it is revealed that petitioner was working in United Bank Limited which has branches in more then one province and in terms of definition of trans-provincial establishment given in section 2(xxxii) of the IRA, 2012 the respondent bank is a trans-provincial establishment. Section 2(xxxii) states;

"trans-provincial" means any establishment, group of establishments, industry, having its branches in more than one province;

8. Under section 53 of the IRA, 2012 NIRC has been established and under section 54 of the said Act, the functions of the said commission are mentioned which include section 54(e) which states as under:

"to deal with cases of unfair labour practices specified in sections 31 and 32 on the part of employees, workers, trade unions of either of them or persons acting on behalf of any of them, whether committed individually or collectively, in the manner laid down under section 33 or subsection (9) section 33 or in such other way as may be prescribed, and to take, in such manner as may be prescribed by regulations under section 66, measures calculated to prevent an employer or workman from committing an unfair labour practice;"

9. Similarly section 57 of the IRA, 2012 which deals with the additional powers of the NIRC states that pending applications, proceedings or appeal, which fall in the jurisdiction of NIRC to be withdrawn from Labour Court of the Province. Section 57(2)(b) of the IRA, 2012 states as under:

"withdraw from a Labour Court of Province any application, proceedings or appeal relating to unfair labour practice, which fall within jurisdiction of the Commission; "

10. When the above power is read with the definition of Labour Court given in section 2(xx) of the IRA, 2012 which states "Labour Court" means a Labour Court established in a Province.

11. It is clear that the appeal of the petitioner pending before the Punjab Labour Appellate Tribunal could not be decided by the said forum on promulgation of the IRA, 2012.

12. The Hon'ble Supreme Court of Pakistan in referred judgment has held as under:

After combined reading of the scheme of new labour laws, both Provincial and Federal, it may be concluded without any fear of rebuttal that two parallel forums have been created, one on a provincial basis whereas latter is federal level forum, called NIRC. Both these forums are having jurisdiction to deal with industrial disputes and unfair labour practice and other allied matters either attributable to the employer or the workers/ workmen, however, the Federal Law has drawn a clear demarcation line of jurisdiction of these two different forums, i.e. Labour Courts in the Provinces and the other NIRC at the Federal Level. It is not the nature of dispute, particularly, unfair labour practice, which confers jurisdiction on one or the other forum but it is the status of the employer or the group of employers, which would determine the jurisdiction of the Provincial Labour Court and that of the NIRC. To be more clear on the point we have no hesitation to hold that once it is established though any means that the employer or group of employers has an establishment, group of establishments, industry, having its branches in more than one Provinces, then the jurisdiction of the NIRC would be exclusive in nature and of overriding and super imposing effects over the Provincial Labour Court for resolving industrial dispute including unfair labour practice, etc. related to the employer, having its establishment or branches or industrial units in more than one Province and re-course has to be made by the aggrieved party to the NIRC and not to the Provincial Labour Court.

13. Earlier to the IRA, 2012 an Ordinance was also issued in the year 2011 on 18-7-2011 which had identical provisions as of IRA, 2012. Therefore on the promulgation of the Industrial Relation Ordinance, 2011 it was incumbent upon the Punjab Labour Court No.4, Faisalabad to transfer the NIRC but the same was not done. Therefore, the order passed by the said court is also liable to be set aside.

14. From the above it is clear that on promulgation of IRA, 2012 the proceedings pending before the Punjab Labour Appellate Tribunal, Lahore was to be transferred to the NIRC for its decision, however, this exercise was not done therefore, the impugned order dated 29-2-2012 passed by the Punjab Labour Court No.IV, Faisalabad and judgment dated 25-2-2013 passed by the Punjab Labour Appellate Tribunal, Lahore are hereby set-aside. The appeal of the petitioner shall be deemed to be pending before the Punjab Labour Appellate Tribunal, who shall transfer the said appeal to the NIRC for its decision strictly in accordance with law. The NIRC, on receipt of the pending proceeding from the Punjab Labour Appellate Tribunal, Lahore shall decide the matter strictly in accordance with Industrial Relations Act, 2012 within a period of two months from the date of receipt of pending proceeding.

15. For what has been discussed above, the instant writ petition is allowed in view of above terms. JJK/I-5/L Petition allowed.