2021 PLP 234 (PLC)

MOHAMMAD IBRAHIM KHAN, J.

This is Labour Appeal against the judgment dated 12.11.2016 in case No. 1/1 of 2011, passed by the learned Presiding Officer, Labour Court Haripur, whereby grievance petition filed by respondent Syed Arif Shah under Section 37 of the Khyber Pakhtunkhwa, Industrial Relations Act, 2010 has been accepted. His order of termination dated 19.08.2010 was set aside and he was re-instated in service with all back benefits including service and monetary benefits.

2. This appeal came up for hearing on 27.04.2017 in motion at it was admitted for regular hearing and through C.M. No. 277-A/2016, the operation of the impugned judgment was suspended subject to notice. Latter the respondent was facilitated by an order dated 18.11.2019 and the order dated 27.04.2017, passed under the said CM was vacated. The appellants were directed to reinstate the respondent forthwith till further orders. Since then, the respondent is regularly in service. It is in the order dated 25.01.2021, whereby specific queries were put about the ambit of jurisdiction of the Labour Court hearing the appeal under Section 37 of the Khyber Pakhtunkhwa Industrial Relations Act, 2010 and clarify whether this appeal is competent in its present form?

3. While hearing learned counsel for the appellant, he has referred to the wisdom in the judgments reported in "Mehnat Kash Union, Leaf Area, Phillip Morris (Pak) v. Messrs Phillip Morris Pakistan Ltd. and others (case No. 4A(68)/2015-P), Haider Zaman and another v. Tobacco Mazdoor Union Phillip Morris Pakistan and 2 others (Case No.7A(09)12016-P, Pakistan Telecommunication Company Ltd. v. Member NIRC and others (2014 SCMR 535), Messrs Sui Southern Gas Company Ltd. and others v. Federation of Pakistan and others (2018 SCMR 802), Iftikhar Khan and 13 others v. Phillip Morris (Pak) Ltd. (Case No. 4B(12)/2018-P, Zahir Shah, Ex-Depot Supervisor v. Messrs Phillips Morris (Pakistan) Limited, through its MD and 03 others (Appeal No.12A(27)/2018-P and Safarash Khan v. Messrs Phillip Morris Pakistan Ltd. and others (Appeal No.12A(10)/2019-P)".

4. In view of the referred judgments, it was specifically argued that the Industrial Relations Act, 2012 shall apply to Establishment or Industry in the Islamabad Capital Territory or carrying on business in more than one provinces. Then under definition clause to Section 2 (vi), Commission has been defined as "the Industrial Relations Commission constituted under Section 53". Under Section 2(x) "Establishment" has been defined as "establishment means any office, firm, factory, society, undertaking, company, shop or enterprise, which employs workmen directly or through a contract for the purpose of carrying on any business or industry and includes all its departments and branches in the Islamabad Capital Territory or falling in more than one province whether situated in the same place or different places and except in section includes a collective bargaining unit, if constituted by any establishment or group of establishments". The definition of industry has been given under Section 2(xvii) as "Industry includes any business, trade, calling employment or occupation for production of goods or provisions of services in the Islamabad Capital Territory and falling in more than one province, and excluding those set up exclusively for charitable purposes". Lastly the definition of "Trans-provincial" is provided under Section 2(xxxii) as "Trans-provincial means any establishment, group of establishments, industry, having its branches in more than one province."

5. Without dilating upon the jurisdiction of the learned Labour Court Haripur, while deciding the grievance petition of the respondent and to refer the matter to the National Industrial Relations Commission or return the same grievance petition to the respondent, this court has been invited attention to Section 57 of the Industrial Relations Act, 2012 subsection (5) (By Mr. Abdur Rehman Qadir, a leading Advocate practicing labour laws at all levels from the trial Court up to the Honourable Supreme Court of Pakistan being requested by this Court to act as amicus curie) which says:- "57 (5) Save as provided in subsection (4) no Registrar, Labour Court or Labour Appellate Tribunal shall take any action, or entertain any application or proceedings, in respect of any matter which falls within the jurisdiction of the Commission: 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."

6. When confronted with the specific provision under this act, the learned counsel for the appellant has candidly admitted that instead the respondent is to be directed to address his grievance petition before the NIRC instead of Labour Court. It is for the appellant to seek proper remedy either before the Commission or else may prefer writ petition to declare the judgment impugned herein to be against the cannons of justice and without jurisdiction.

7. This appeal, even if admitted in motion, would not be competent before the Labour Appellate Tribunal, hence is returned for presentation before the proper forum. SA/81/P Appeal returned.