2018 PLP 2 (PLC N)

JUSTICE (R.) SAGHEER AHMED QADRI, CHAIRMAN

The appellant Muhammad Ajmal Khan Niazi, Foreman (BS-11) serving in DMTC (Dehi Mazdoor Training Center/GTTC Government Technical Training Center Kabirwala) filed grievance petition under section 17 read with sections 45, 64 and 68 of Punjab Industrial Relations Act, 2010 mentioning the facts that he initially was recruited as Skilled worker (BS-08) in Punjab Small Industry Corporation, however, subsequently his services were transferred to TEVTA on deputation; that presently he was performing his duties as Foreman BS-11 and was Secretary General of registered TEVTA Staff Union, Punjab; that to curb his union activities he was transferred vide order dated 21.03.2016 and was relieved from his duties vide order dated 24.03.2016. He challenged said transfer orders being illegal without lawful justification and mala fides to refrain him from lawful labour union activities. It was prayed that said orders be set-aside and till final disposal of the grievance petition those orders be suspended.

2. The respondents in reply to the said petition filed application under Order VII, Rule 11, C.P.C. mentioning the facts that since services of the appellant had been absorbed with TEVTA, hence the learned Labour Court had no jurisdiction under section 1(3)(h) of PIRA, 2010 as said authority being controlled by the Government of the Punjab and were being run on non-profitable and non-commercial basis. This application was replied by the appellant. In preliminary objection No.4 it was replied:

4. That the Notification No. TEVTA/Bud/PSIC/Abs/2014-2015 dated 22.12.2014 was issued with the subject "Absorption of PSIC employees", which reads as follows:- "Technical Education and Vocational Training Authority (TEVTA) is pleased to approve the absorption of PSIC employees transferred to TEVTA with effect from 01.10.2014 in TEVTA. The services of PSIC employees in TEVTA shall continue to be governed by the prevailing PSIC Rules and Regulations as amended from time to time in future". Other assertions of the application were further controverted and prayed that petition be dismissed.

3. The learned trial court after hearing the parties vide impugned judgment dated 03.10.2016 while accepting the petition disposed of the grievance petition as court lacks jurisdiction under section 1(3)(h) of PIRA, 2010. Feeling aggrieved the appellant has preferred this appeal.

4. Learned counsel for the appellant contends that the impugned judgment passed by the learned trial court is against the law and facts of the case. Learned counsel while referring Notification No.TEVTA/Bud/PSIC/Abs/2014-2015 dated 22.12.2014 contends that labour laws are applicable on the appellant, hence the learned trial court committed illegality. Prayed that this appeal be allowed.

5. On the other hand learned counsel for the respondents opposed the arguments advanced by the learned counsel for the appellant while relying on the same notification that as the appellant has already been absorbed in TEVTA, hence on the basis of judgment i.e. 2016 PLC 360 titled Technical Education and Vocational Training Authority through Chief Operating Officer and another v. Hafiz Naseer and 2 others, the learned trial court rightly held that it had no jurisdiction under section 1(3)(h) of PIRA, 2010. Prayed that this appeal be dismissed.

6. I have heard learned counsel for the parties and perused the records.

7. The basic objection which was raised by the respondents at trial stage about jurisdiction of the court was that TEVTA being a non-commercial institution falls within the category of institutions which are excluded from the jurisdiction of the learned Labour Court under section 1(3)(h) of PIRA, 2010. In order to further clarify it is appropriate at this stage to reproduce said provision: (3). It shall apply to all persons employed in any establishment or industry, but shall not apply to any person employed: (a) . (b) . (c) . (d) . (e) . (f) . (g) . (h). in an establishment or institution providing education or emergency services excluding those run on commercial basis.

8. Learned counsel for the appellant mainly relied on the notification issued by Finance Wing TEVTA whereby the employees of PSIC were declared absorbed in TEVTA. The recital of this notification is hereby reproduced: Sub: Absorption of PSIC employees No. TEVTA/Bud/PSIC/Abs/2014-15 Technical Education and Vocational Training Authority (TEVTA) is pleased to approve the absorption of PSIC employees transferred to TEVTA with effect from 01.10.2014 in TEVTA. The Services of PSIC employees in TEVTA shall continue to be governed by the prevailing PSIC Rules and Regulations as amended from time to time in future. The creation/ transfer of Pension Fund, General Provident Fund and Benevolent Fund in TEVTA shall be made as per following arrangement; Learned counsel for the appellant on the basis of above said recital observed that PSIC employees initially on deputation were absorbed while retaining the application of PSIC rules and regulation, hence the appellant was not employee of TEVTA, thus the exclusion clause under section 1(3)(h) of PIRA was not applicable and the learned trial court had the jurisdiction to decide the grievance petition of the appellant. On the other hand learned counsel for the respondent basing on the same notification dated 22.12.2014 further referred the paras 2 to 5 and 6 of the said notification whereby it was decided that after absorption of the PSIC employees in TEVTA now they were entitled for all pensionary benefits etc, hence all practical purposes they were TEVTA employees. As in a judgment followed by the learned trial court cited as 2016 PLC 360 supra, the TEVTA employees declared not entitled to raise their grievances before the labour court under section 1(3)(h), hence the impugned judgment is perfectly lawful and justified.

9. There is no denial to the fact that the previous employees of PSIC have been absorbed in TEVTA vide notification dated 22.12.2014 mentioned above. Further this notification reveals that the payment of pension of PSIC employees who retired before transfer to TEVTA shall continue to be paid by PSIC, however, the remaining employees absorbed shall be paid all the pensionary and allied benefits including Benevolent fund etc by TEVTA. All the financial powers now under para.9 of the said notification rest with the authority under TEVTA delegation of financial powers 2012 amended time to time. In these circumstances, when the appellant for all intent and purposes are the employee of TEVTA and performing their duties in the said authority which according to the judgment relied upon by the learned trial court (2016 PLC 360) titled Technical Education and Vocational Training Authority through Chief Operating Officer and another v. Hafiz Naseer and 2 others supra, section 1(3)(h) is applicable in the present case, hence the learned trial court rightly disposed of the grievance petition leaving the appellant to get relief sought from any other competent forum. No merits in this appeal, it is hereby dismissed. File be consigned to the records room after due completion. The trial court's records be sent back immediately. MQ/10/PLT Appeal dismissed.