1995 PLP 738 (PLC)

4. The Labour Court dismissed their petitions holding that it had no jurisdiction to entertain the matter in question because of the bar as contained in section 1(3)(a) of the Industrial Relations Ordinance, 1969. The findings of the Labour Court. were challenged before the Chairman, Labour Appellate Tribunal, N: W.F.P., Peshawar. The learned Chairman, Labour Appellate Tribunal, while upholding the decision of Labour Court, dismissed all the three appeals directing the parties to bear their own costs.

5. The vires and the legality of the decision of the learned Chairman, Labour Appellate Tribunal has been impugned by the petitioners who have filed the present writ petitions for the redress of their grievance.

6. Mr. Abdul Waheed, Advocate for the petitioners and Mr. Nisar Ahmad Khan, Advocate for respondent No. 3 present and heard. Record of the case perused.

7. The learned counsel for the petitioners, at the very outset, admitted that the respondent's establishment does not fall within the ambit of Industrial Relations Ordinance and, therefore, the Labour Court would have no jurisdiction under the said Ordinance to go unto the menu of any dispute of an employee of respondent No.

3. On the other hand, he stressed on the point that in spite of the exclusion of the Industrial Relations Ordinance the petitioners could still agitate the matter before the Labour Court which was competent to take cognizance of the case under the provisions of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. He further submitted that it was because Standing Order 12(3) of the Standing Orders provides:‑‑ "The services of a workman shall .not be removed, retrenched, discharged or dismissed from service, except by an order in writing which shall explicitly state the reason for the action taken. In case a workman is aggrieved by the termination of his services or removal, retrenchment, discharge or dismissal, he may (take action in accordance with the provisions of section 25‑A of the Industrial Relations Ordinance 1969 (XXIII of 1969) and thereupon he provisions of the said section shall apply as they apply to the redress of an individual Grievance."

8. The abovementioned argument of the learned counsel for the petitioners was controverted by the learned counsel for respondent No.

3. He contended that the remedy, to the petitioners was available only under the framework of the Industrial Relations Ordinance and as and when the operation of this Ordinance was excluded, specifically, then in that case no grievance could be redressed under section 25‑A of the said Ordinance. He further stated that section 1(3)(a) of the Ordinance excludes the employees of the respondent No. 3 from the purview of the Industrial Relations Ordinance and that they cannot be permitted to file grievance petitions under section 25‑A of the Ordinance. He further stated that if the petitioners were allowed to get their grievance redressed under section 25‑A of the Industrial Relations Ordinance then in that case the bar created under section 1(3)(a) would be rendered invalid and useless. This according to him could not be the intention of the legislature. The bar created under the statute, which prohibited the employees from approaching the Labour Court, according to the learned counsel for the respondent, appeared to save the Organisations, mentioned in the prohibitory clause, from frivolous/false litigation and to avoid unnecessary interference in the smooth running of their functions. It also helped to maintain discipline.

9. The common question of law which arises in all these writ petitions is whether the Labour Court is or is not competent to hear the cases arising out of dismissal/removal from service of a workman. Accordingly we will have to examine the background of the Labour Laws in order to decide this question.

10. The Industrial Relations Ordinance was promulgated on 3‑i1‑1969. Section 35 of the Ordinance enabled the Provincial Government to establish the Labour Courts to adjudicate upon and determine industrial disputes referred to them whereas section 38 empowered the Provincial Government to set up a Labour Appellate Tribunal to hear appeals from a decision given by a Labour Court. The West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 was promulgated on 8‑3‑1968. This also provides protection to workmen against arbitrary termination of their services.

11. Some very important changes were, however, made in the labour laws from 1972, which afforded greater protection to the workmen against the termination of their services. These changes not only provided the forums where they could take their grievances but also enlarged the nature of the dispute. Thus, the Labour Laws (Second Amendment) Ordinance (No. XVIII of 1972) promulgated on 27‑5‑1972 recast clause (3) of the Standing Order 12 as under:‑‑ "The service of a workman shall not be terminated nor shall workman be removed, retrenched, discharged or dismissed from service except by an order in writing which shall explicitly state the reasons for the action taken. In case a workman is aggrieved by the termination of his services or removal, retrenchment, discharge or dismissal, he ma take action in accordance with the provisions of) section 25‑A of the Industrial Relations Ordinance 1969 (XXIII of 1969) and thereupon the provisions of the said section shall apply as they apply to the redress of an individual grievance."

12. The learned counsel drew our attention to section 1(4)(a), section 2(b)(f)(1) of West Pakistan (Standing Orders) Ordinance (No. VI of 1968) and stated that in view of the provisions contained therein the petitioners were entitled to move the Labour Court of their grievance.

13. It is, therefore, difficult for us to subscribe to the view of the learned Chairman, Appellate Tribunal. It may be noticed that under section 25‑A(1) the grievance has to relate to a right guaranteed or secured by the workmen under or by any law or any award or settlement for the time being in force. Whether a workman removed from service in violation of the provisions of Standing Order 12 could also seek relief from a Labour Court was a matter of interpretation of section 25‑A(1). To remove all double in this regard Standing Order 12(3) specifically provided that he, too, could take his grievance to the Labour Court, whatever be the nature of the grievance, whether it is the one mentioned in section 25‑A(1) or of the kind specified in Standing Order 12(3), the competence of the Labour Court, to deal with it, flows from section 25‑A of the Ordinance. It may be noticed that under section 35(5)(d) of the Industrial Relations Ordinance it is an ordinary function of a Labour Court to exercise and perform such other powers as are or may be conferred upon or assigned to it by or under any other law. Thus, while recording its decision upon a grievance petition filed in pursuance of the provisions of Standing Order 12(3) it does not act as a persona designata.

14. We are, therefore, of the view that the Labour Court had the jurisdiction under Standing Order 12(3) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 to entertain the grievance petition. By accepting these writ petitions, the judgment/order of the learned Labour Court dated 7‑10‑1991 and the learned Chairman, Labour Appellate Tribunal, N.‑W.F.P. dated 26‑2‑1992 are set aside and the cases are remanded back to the Labour Court with the directions to give its findings on merits after affording opportunity of hearing to both the parties. No order as to costs. The office is directed to send the record to the Labour Court immediately. H.B.T./1813/P Petitions accepted.