2013 PLP 82 (PLC)

ABDUL GHIAS NOUSHERWANI (MEMBER).

During the pendency of grievance application filed by respondents for regularization of their services in Case No 59 of 2011 before learned District and Session Judge 1st Labour Court Balochistan, after filing of written statement an application for dismissal of grievance application for want of jurisdiction has been moved by the appellant/respondent on the ground that in view of section 1 subsection (3) of IRA, 2012 the matters of employees and employers pertaining to industrial dispute fall under the jurisdiction of NIRC where the employer has its establishment in more than one province. The respondent contested the application on the ground that the IRA, 2012 was applicable since 14-3-2012 and the instant case has been filed on 14-11-2011 which is not applicable and such protection is available under section 86 of BIRA, 2010.

2. The learned Labour Court after hearing the parties dismissed the application with the following observations:

"It is necessary to mention here that a case titled Muhammad Imran v. the Managing Director USC and others in appeal under section 48(3) of the IRO, 2002 remanded to this court vide judgment dated 4th May, 2012 by the honourable Labour Appellate Tribunal Balochistan, Quetta for decision on merits, where by the order/judgment dated 11-8-2011 passed by this court has been set aside. I also perused the said judgment of Honorable Labour Appellate Tribunal Balochistan, Quetta and justified the point of jurisdiction, that since the Honorable Labour Appellate Tribunal Balochistan, Quetta has remanded the above title case to this court for re-decision on merits, meaning thereby that this court has jurisdiction to proceed with the matter, therefore, without going in to further discussion, it is enough and sufficient for this court to proceed with the matter and discard the request of respondents regarding having no jurisdiction on the part of this court."

3. The learned counsel for appellant highly objected the Vakalat Nama of the learned counsel for respondent on the ground that no power of attorney of applicants is available with the Vakalat Nama and the power of attorney which is available on the file of learned Labour Court is also not valid because the same has not been prepared on stamp paper. The learned counsel for respondent on the other hand contended that in Labour laws it is not mandatory that the power of attorney shall be prepared on stamp paper and the original power of attorney is available on the record of Learned Labour Court.

4. From perusal of Labour laws it appears that the power of attorney is not required to be prepared on stamp paper and this is in practice since creation of Labour laws. Further taking in to consideration the section 53 (4) BIRA, 2010 where no court fee is payable for filling, exhibiting or recording any document or obtaining any document from a Labour court. Meaning thereby in all proceedings of Labour Courts including Labour Appellate Authority no court fee is payable except an ordinary court-fee of Rupees 1/2 on Vakalat Nama therefore this objection is not sustainable.

5. In this connection the learned counsel for appellant agitated that such a large number of Labours cannot empower a person to plead their case. In reply the learned counsel for respondent referred section 68 of BIRA, 2010 wherein it is mentioned that a workman who is a party to an industrial dispute shall be entitled to be represented in any proceedings under this Act by officer or a Collective bargaining Agent and subject to the provisions of subsection (2) and subsection (3) any employer who is party to an industrial dispute shall be entitled to be represented in any such proceedings by a person duly authorized by him. In view of above referred section 68 of BIRA, 2010 this objection is ruled out.

6. The learned counsel for appellant contended that after 18th Amendment BIRA, 2010 introduced which is applicable only to the extent of Balochistan whereas newly created IRA, 2012 extends to entire country in industrial disputes where employer has its establishment in more than one province. Further contended that according to his information in view of introduction of IRA, 2012 all the Labour Courts returned the cases pertaining to companies having its establishment in more than one province. In this respect he referred a decision of Punjab Labour Court No.6 Rawalpindi wherein certain cases were returned for want of jurisdiction. Lastly contended that the learned Labour Court rejected the said application without considering the arguments of counsel therefore order impugned is a non-speaking order. The learned counsel for respondent on the other hand contended that one of the six respondents preferred this appeal which is not competent. Secondly contended that the IRA, 2012 has been introduced on 14-4-2012 whereas the case under question has been filed on 24-11-2011 therefore the same is not applicable. Further contended that the BIRA, 2010 extend to all of the Balochistan and nowhere it is mentioned that the matter of industrial dispute pertaining to Balochistan will be adjudicated in Karachi for having its business there and if the plea of learned counsel for appellant be considered then great difficulties not only faced by the litigant but also a constitutional dead lock will be created in view of 18th Constitutional Amendments.

7. It will be better to see the back ground of legislature with regard to Labour welfare. Initially the matters relating to welfare of Labour and trade union were mentioned in the concurrent legislative list at Items Nos.26 and 27 as such the Federal Government as well as Provincial Government both were competent to make legislation in that behalf. The Federal Government promulgated the IRA, 1969 which was repealed by the IRO, 2002 and same was also repealed by IRA, 2008. Section 87(3) of the IRA, 2008 provided that the said Act shall unless repealed earlier stand repealed on 30-4-2010. Hence it was temporary legislation which was to die on 30-4-2010 automatically if it was not extended by legislative measure. Before the repeal of IRA, 2008 on 20-4-2010 18th Constitutional Amendment was passed where by the concurrent legislative list was abolished and the matters relating to Labour and trade union were transferred to legislative competence of Provincial Government. Meaning thereby that the matter relating to Labour industrial dispute and trade union came under the legislative of respective province. After 18th Constitutional Amendment the Government of Balochistan like other provinces issued BIRO, 2010 which was repealed by BIRA, 2010 under which the Labour Courts as well as Appellate Tribunal were created and working under the same law.

8. Subsection (3) of section 1 of IRA, 2012 is reproduced as under, "It shall apply to all persons employed in any establishment or industry, in the Islamabad Capital Territory or carrying on business in more than one province" Likewise section 1 subsection (2) of BIRA, 2010 which was introduced in the light of 18th Constitutional Amendments states, "It extends to the all of Balochistan except tribal area" In above quoted section no bifurcation is mentioned in BIRA, 2010 which provides that the industrial disputes of Balochistan will be adjudicated by another authority on the ground that the employer also has its establishment in other province. However taking into consideration subsection (3) of section 1 of IRA, 2012 it is better to read the same with section 34(2), section 54(a) and explanation of section 57 which clear the legal position of IRA, 2012 with regard to jurisdiction of NIRC and that of Labour courts. Apparently the jurisdiction of NIRC is confined to the matters affecting the affairs of establishments and employees within the country or within the provinces where the employer has more establishments than one province. Furthermore trade union or CBU representing such employees having their membership in more than one province and to the matters of unfair Labour practice.

9. For convenience section 34(2), IRA, 2012 is reproduced as under, "Notwithstanding anything contained in this Act, a federation of trade unions or federation may, if it is a collective bargaining agent, raise an industrial dispute affecting all employers or workers of the establishments represented by that federation and a decision of the Commission shall be binding on all such employers and workers." It is clearly mentioned in above quoted section that the NIRC has the jurisdiction over the matter of industrial dispute affecting all employer or workers of the establishment in more than one province. Provided that the jurisdiction of NIRC is invoked when any industrial dispute raised by a federation of trade union or federation it is a CBA and which equally exists in more than one province in different establishment. The above quoted section further clarified that subject to if the trade union or federation representing such employees in more than one establishment in different provinces. The individual claim of respondents/applicants in their grievance application is confined to their regularization of their services pertaining to the different districts of the province of Balochistan and this issue has not been raised by federation of trade unions or CBA. Likewise this matter has been agitated before the learned Labour Court on 24-11-2011 much before the introduction of IRA, 2012 which is not applicable under the circumstances of the case.

10. The section 54(a) of IRA, 2012 with regard to function of the commission it is mentioned:

"(a) to adjudicate and determine an industrial dispute in the Islamabad Capital Territory and trans-provincial to which a trade union or a federation of such trade unions is a party and which is not confined to matters of purely local nature and any other industrial dispute which is, in the opinion of the Government, of national importance and is referred to it by that Government" The above quoted law clearly ousts the jurisdiction of NIRC over the matters of purely local natures when the trade union or a federation of such trade unions is not a party. In the matter in hand neither a trade union nor a federation of such trade unions is a party rather it is a dispute between the employees individually and employer in such situation according to above clarification the jurisdiction of NIRC is not attracted.

11. In section 57 the explanation to it is very important which is reproduced hereinunder for ready reference:

"Explanation

The expressions "industry-wise trade union" and "federation of such trade unions" refer to a trade union membership of which extends to establishments in more than one province and a federation of trade unions whose membership extends to registered trade unions in more than one province." It clearly indicates that the jurisdiction of NIRC comes under consideration where industry-wise trade union and federation of such trade unions having its membership to establishments in more than one province such above mentioned situation is not involved in the dispute before the Labour Court.

12. The learned counsel referred a judgment of Punjab Labour Court No.6 Rawalpindi wherein certain cases were returned to appellants for want of jurisdiction is not binding upon this Tribunal. However from perusal of this judgment no guideline or principle laid down therein to be followed/adopted by this Tribunal.

13. So for as the objection of learned counsel for appellant that the learned Labour Court did not consider his arguments the same has been heard in detail in two hearings and considered accordingly and discussed in Para Supra but I see no reason in agitated points to convince this Tribunal with regard to jurisdiction of Labour Courts. Therefore interim order dated 24-5-2012 is upheld. Consequently appeal is dismissed with no order as to cost.

14. The copy of order along with original record of trail court be sent to trial court. Case after completion be consigned to record. HBT/18/BLT Appeal dismissed.