2008 PLP 341 (PLC)

MUHAMMAD SHABBIR JAMAL (MEMBER).

This petition has been filed under section 33 of I.R.O. by the C.B.A. union. It is contended that the respondent management always allows annual increments to its employees in the month of January every year. It is further contended that accordingly annual increments for the year 2002, 2003, and 2004 were extended to the employees. It is stated that the annual increment for the year" 2006 was also allowed but the one for the year 2005 was withheld. It is contended that annual increment is a right guaranteed and secured to employees under the law and so its refusal is a violation of the law. It is further contended that this increment on the other hand has been extended to the contractual employees that is discriminatory as evident from Annexures "D" to "D/4". It is stated that the regular employees have been deprived of it. Based on these contentions it is prayed that direction be issued to the respondent management to allow the annual increment for the year of 2005 to all the employees as a matter of right. After hearing the learned Counsel for the petitioner union, pre-admission notice was issued to the respondent for consideration of the question whether NIRC has the jurisdiction to determine the instant petition. The petition was resisted by the respondent establishment by raising the following preliminary objections through their reply statement:

(i) The petitioner has no locus standi to file the instant petition. (ii) The petition is fallacious and mischievous. It is bereft of factual transparent and legal sacrosanct. (iii) The petition is not maintainable in that C.B.A. cannot enforce right vested in a workman. Concomitantly, if C.B.A. cannot enforce the right of an individual workman, for the same reason it cannot under section 33 of I.R.O., 2002 enforce right of a number of workmen. (iv) For the very reason a trade union cannot espouse the case of workers. Reliance is on 1986 PLC 751. (v) This Bench is not competent to entertain and adjudicate upon this petition. The reason is that under section 50(3)(b) of I.R.O. 2002, a Bench of the Commission cannot act as Labour Court if such functions are assigned to it. Under subsection (1) of section 50 it is the Chairman of NIRC who can assign function of Labour Court to an appropriate Bench of NIRC. No such assignment has been made by the learned Chairman, NIRC. (vi) The claim raised in this petition suffers from grave laches and merits dismissal on this sole ground. (vii) Presuming without conceding that the instant petition relates to the rights of C.B.A. it is still not maintainable as no right guaranteed or secured to it by or under any law or any award or settlement has been infracted.

2. The matter was argued at length by both the learned counsel. While responding to objections 1, 2, 3 and 4 raised by the opposite party the learned Counsel for the petitioner union contended that for this petition he relied on the judgment of the Honourable Chairman of the. Commission passed in the Case 4A(8) of 2004 (Mazdoor Union Neelum Glass Industries Limited v. Neelam Glass Industries Limited) that had by now attained finality as no appeal was filed against the judgment. It has been argued that in view of this judgment C.B.A. under section, 33 of I.R.O. can espouse the cause of workers and NIRC has the jurisdiction to determine the same. The learned Counsel also has relied on the judgment reported as 1995 PLC page 554 whereby it has been held that the C.B.A. can espouse the cause of workers. He has referred also to judgment reported as PLD 1971 SC 252, according to which the cause of action arising out of contract being under the statute is a vested right of the person for which he can seek remedy from a Court of law. The learned Counsel has also drawn distinction between the scope of section 33 and section 46 of I.R.O., 2002. The learned Counsel has argued that under former provision of law C.B.A. can espouse workers' cause whereas in the latter provision of law workers individually or collectively can move a Court of law after his or their grievance petition is not redressed by the employer. He has argued his petition by all means is maintainable before the NIRC. In so far as C.B.A. right to espouse workers cause he has contended that section 33 must be read with section 20(13) of I.R.O., 2002. He has argued that respondent himself is not certain about his own objections as evident from the contents of the Objection No.1 which reads as follows:

"Petitioner has no locus standi to file the instant petition."

3. In so far as objection No.5 is concerned i.e. that this Bench is not competent to entertain and adjudicate upon the petition, the learned Counsel has referred to section 50, subsection (3), clause (b) of I.R.O., 2002 to be read with clause (a) of the same section. It is contended that restriction or embargo in clause (b) of subsection (53) pertains to assignment of such functions to be performed but is not a condition or embargo provided under clause (a) of the said section as interpreted by the learned Counsel of the opposite party. It is further contended that there are two dimensions of interpretation of the said section: (I) It pertains to cause of alleged unfair labour practice; (II). It pertains to enforcement of any right guaranteed or secured under any law, settlement or award or cause of redress of individual grievance in respect of any right so guaranteed. It is argued by the learned Counsel that he has not pleaded the cause of unfair labour practice so instant petition relates only to second dimension of the said section. The learned Counsel for the petitioner has further argued that NIRC has the jurisdiction to entertain all types of grievances, which C.B.A. can espouse. It is contended that it is not essential that there should be an element of unfair labour practice for bringing the case before NIRC. The learned Counsel in this regard relied on the case law: 1983 CLC page 1702; and 1983 PLC page

1. In reply to objection No.6 the learned Counsel has argued that his case is not a case of laches as contended by the opposite party in the written statement.

4. The learned Counsel for the respondent has argued that the instant petition is an attempt to seek order from this bench for Bank Employees in respect of allowing then annual increment for the year 2005 which was a right guaranteed or secured under the law. It was stated that SME Bank was created by Amalgamation and Conversion Ordinance of 2002 whereby R.D.F.C. i.e. Regional Development Finance Corporation and S.B.F.C. i.e. Small Business Finance Corporation have been merged. It was further stated that all permanent employees of Regional Development Finance Corporation and Small Business Finance Corporation shall be transferred to the new set up i.e. SME Bank which is a Company registered under the Company's Ordinance 1984. It was further stated that the terms and conditions of old laws continued to be applicable to the employees under section 7 of the Amalgamation Ordinance of 2002. It is stated that two separate sets of rules and regulations were framed. It was argued that rules were framed in consultation with the Federal Government in carrying out the purposes of the Ordinance. It was contended that it was authority of the Board to make regulations for employees terms and conditions of service. It was further stated that rules were framed for carrying out the purposes of the Ordinance, for example, giving advances/loans and recovery. He has argued that the effect of it is that the regulations that govern the employees are in no manner statutory in nature.

5. It has been argued by the learned Counsel for respondent that it is incorrect that the grant of annual increment is guaranteed by law. It is contended that it is settled law that C.B.A. cannot espouse the cause of workers and therefore application filed under section 33 of I.R.O., 2002 is not maintainable. In this regard he relied on the judgment reported as 1992 SCMR 36, 2006 PLC 2004. The learned Counsel has further argued that section 33 of I.R.O., 2002 and section 34 of I.R.O. 1969 are analogous to each other. Before 1973 after the word "employer" the words "or workman" was used in section

34. These words were omitted by Ordinance XXIX of 1973. It has been argued that before amendment of section 34 a workman could also file an application in respect of any right guaranteed or secured to him or under any law or award or settlement. It is stated that this amendment was made on 9th February, 1973. It is further stated that earlier section 25-A was added in the I.R.O., 1969 by Labour Laws (Amendment) Ordinance, 1972. It is stated that section 25-A is analogous to section 46 of the existing Ordinance of 2002. The object of omitting the word "workman' from section 34 was that this right was provided to a workman under section 25-A of I.R.O., 1969. It is argued that this view was also held by High Court in PLD 1979 Kar. 473 in the following words:

"Interpretation that right secured to workers can also be enforced by taking recourse to section 34 was not permissible as it would result in rendering section 25-A nugatory." On the above analogy, if a right secured to workers is enforced by taking recourse to section 33 of I.R.O., 2002 it will render nugatory subsections (1), (2), (3) and (4) of section 46 of I.R.O., 2002 and allow workers to bypass procedure laid down therein.

6. It has been argued that sections 33 and 46 therefore independently relate to C.B.A. and workers respectively for enforcement of their personal rights. It is contended that the C.B.A. (petitioner) has already submitted Charter of Demands to Respondent Bank which includes as one of the demands the subject matter of the instant petition. He has further argued that the C.B.A. cannot be allowed to seek simultaneously relief from two forums.

7. It is contended that section 46 as well as section 33 envisage that Labour Court can enforce in respect of grievance connected with any right guaranteed or secured to him by or under any law, award or settlement. It is further argued that similar provision exists in section 50(3) (a) that the allegations of unfair labour practice should generate from violation of any right guaranteed or secured under any law, award or settlement. It is argued that the words used in section 33 "any grievance or" have to be read in conjunction with sections 46 and 50(3)(a). It is argued that the law laid down in PLD 1988 SC 53 .does not permit NIRC to entertain all types of grievances except as provided in section 50(3)(a) of I.R.O., 2002. It is further argued that it is the rule of interpretation that when the context so requires, or may be read as "and" and vice-versa.

8. It is argued that without prejudice to the above, the judgment given in the case of Neelam Glass Industries (N.G.I.) is distinguishable from the instant petition. It is further argued that the Management of N.G.I. had reduced the age of retirement from 60 years to 55 years which was violation of section 22 of Employees Old Age Benefits Act, 1976. It is argued that it was therefore, in violation of the right guaranteed under the law. It is contended that the instant petition does not show that any right guaranteed by law has been breached by the Respondent Bank.

9. The learned Counsel for the respondent Bank has further argued that a reference was made to section 50(3)(a) and (b). He has agued that its correct import was not appreciated by the petitioner's Counsel. It is contended that the difference between the two clauses is as under:

(a) Section 50(3)(a) of I.R.O., 2002 relates to individual grievance of workers in respect of any right guaranteed or secured to him by or under any law or any award or settlement. For enforcement of such right section 49(4)(e) comes into play. (b) In contradistinction to individual grievances referred to in clause (a), clause (b) of section 50 of I.R.O. relates to industry wise trade unions, federations of such trade unions, and federations at the national level etc. He has argued that the rights of enforceable by C.B.A. under section 33 are under sections 3(c)(d), 14, 17, 18, 20, 21, 22, 24(2), 25, 26, 27, 28, 29, 30, 31 while workers can seek redress of their grievances under section 46 of I.R.O., 2002.

10. It has been argued that under section 20(13)(b), C.B.A. is entitled to represent all or any of the workmen in any proceedings. It is argued that it does not give right to the C.B.A. to enforce a right vested in a workman in its own name, because to enforce a right and the right to represent all or any of workmen in any proceedings are two different processes as held in 2006 PLC 404 paragraph

25. It has been argued that the claim raised in this petition relates to the year 2005 and the petitioner seems to have got up from deep slumber without any convincing reason. It has been argued that without prejudice to the above preliminary objections, the instant petition suffers from grave laches and merits to be dismissed on this sole ground. The learned Counsel has relied in this regard on 2005 SCMR 126 by citing the following part of the judgment:

"If High Court finds the party invoking constitutional jurisdiction is guilty of contumacious lethargy, inaction, laxity or gross negligence in the prosecution of the case for enforcement of right it would be justified in non-suiting such person on the premise of laches. Even equity helps the wakeful and not the slumbering." In view of these contentions, the learned Counsel has prayed that the instant petition may be dismissed on point of maintainability and jurisdiction.

11. While the case was argued on the above lines by both the learned counsel of the parties, it was fixed for orders on 14-1-2008. As the same was not ready on that day, the learned Counsel for the petitioner submitted that the Honourable Full Bench in Case No.7A(35) of 2007 (All Pakistan O.P.F. Employees Union v. Overseas Pakistan Foundation) had assumed the jurisdiction in which this Single Bench had declined the jurisdiction. It was contended by him that as the same point of law was involved in both the cases the Single Bench was bound to assume jurisdiction in the instant case under the rule of precedents. The matter was subsequently therefore heard on the point of law and the judgment of the Honourable Full Bench was consulted which is reproduced below:-- "The only grievance of the appellant is that the respondent department has invited applications for the appointment of various jobs and he apprehends that the respondent will not follow the table issued by the competent authority wherein the method . of appointment has given. Learned Law Officer Mr. Irfan Farooq has made a statement at the bar that the respondent shall strictly follow the method of appointment and the ratio as well. In view of the statement made by the learned Law officer the appeal has borne fruit which is accordingly disposed of."

12. The learned Counsel for the respondent as well as Mr. Shahid Anwer Bajwa the learned Advocate who was present in connection with another case during proceedings on 4-2-2008 (who was asked to give his view on the binding effect of the above judgment on the Single Bench while deciding the case between different parties) submitted that the judgment of a Court even if wrong or erroneous whether in law and facts is binding on party which acquiesce in the judgment and does not take steps to challenge it. It was further submitted that such judgment is binding as held in PLD 1987 SC 145 (Pir Bux's case) and is based on the principle of jurisprudence pepsu. It was submitted that however for a person who is not party to the proceedings in which question of law is not expressly decided is at liberty to canvass otherwise. It was also submitted that judgment of a Court on a particular point expressly or impliedly deciding it without discussion on a point of law is judgment in sub-silentio and is not binding precedent as held by Honourable supreme Court in Goraya's case 2005 SCMR (sic).

13. Since the Honourable Full Bench has not discussed the point of law involved in the O,P.F. case i.e. point of jurisdiction, I am not inclined to find any force in the argument or contention of the learned Counsel for the petitioner. I therefore proceed to decide the instant petition in view of the arguments already advanced by the both the learned counsel. I observe that the learned Counsel for respondent has broadened the scope of his arguments by assailing also the interpretation of section 33 of I.R.O., 2002 made in Neelum Glass Industry by the Honourable Chairman NIRC. I have already discussed that case in my judgment in the O.P.F. case from which I am not inclined to deviate. I am in line with that interpretation made by the Honourable Chairman in his aforesaid judgment but I am not inclined to agree with the learned Counsel for respondent on this point. I reproduce below the relevant portion of that discussion from my judgment in the O.P.F. Case: "Before I decide the issue of maintainability and jurisdiction I feel inclined to go through the law and the case law cited by both the learned counsel in support of their contentions. The learned counsel for the petitioner has basically relied on the judgment of Honourable Chairman NIRC in Case No.4A(8) of 2003 as already cited in the above. In this case which was filed by Mazdoor Union under section 49(4)(e) of I.R.O., 2002, the Honourable Chairman has held that in section 33 of the present Ordinance the words "for the redressal of any grievances" have been incorporated. It has been held that this demonstrates that C.B.A. who is entitled under section 20(13) to represent all or any workman in any proceedings have also been authorized under section 33 to approach the Commission for redressal of any grievance. It has been discussed in detail by the Honourable Chairman that the word "any" connotes wide generality and excludes limitation or qualification. To me, the facts of this case are distinguishable from the one of the instant petition in that the former has invoked the jurisdiction of NIRC under section 49(4)(e) on the allegation of unfair labour practice whereas the latter does not allege any unfair labour practice on the part of the respondent. I therefore hold that NIRC cannot act as Labour Court under section 50(3)(a) of I.R.O., 2002 in the absence of t)}e allegation of unfair labour practice. At the same time I am also not willing to concede to the contention of the learned Law Officer that C.B.A. under section 33 and section 49(4)(e) of I.R.O., 2002 has no right to espouse the cause of workers and cannot approach the NIRC for redressal of grievances of workers. The learned Law Officer in this regard has relied on the case law reported as 2006 PLC 404 and 1992 SCMR

36. I have gone through both the judgments. I have noted that in the former case it was observed by the learned Judge at para.24 of his judgment that prior to promulgation of I.R.O., 2002 there was section 34 in I.R.O., 1969 which is equivalent to section 33 of I.R.O., 2002. The contents of section 34 of I.R.O., 1969 and those of section 33 of I.R.O., 2002 are apparently not the same. In section 33 of the present Ordinance the words "for the redressal of any grievance" have been incorporated as also observed by the Honourable Chairman NIRC in Mazdoor Union v. Neelum Glass Industries. The learned Chairman thoroughly discussed this difference in his judgment which has now attained finality as no appeal was filed against it. All earlier judgments, according to my comprehension, have followed the wisdom and the law contained in section 34 of the erstwhile Ordinance of 1969 and therefore the case law developed by the Honourable Chairman in the said judgment is distinguishable from the earlier case law. For all these reasons I do not find any ground to hold that the view expressed by the learned Law Officer of OPF while relying on the judgments of 2006 PLC 404 and 1992 SCMR 36 is tenable." I do not want to dilate on other points raised in the arguments of the learned Counsel for the respondent except that the matter of annual increment whether falls within my jurisdiction or not. I hold that NIRC has no jurisdiction to determine a petition whether brought to it under section 33 by C.B.A. union with a view to espousing the cause of worker or merely by invoking section 49(4)(e) of I.R.O., 2002 by workers or employers if no element of unfair labour practice is pleaded. I therefore hold the same view in the instant case that was held in OPF case cited above. In both the cases, the petition was filed under section 33 of I.R.O., 2002 without alleging unfair labour practice. As similar arguments have been advanced by the learned Counsel for the petitioner union in the instant case, I reproduce below my examination of the relevant provisions of law from my judgment in the earlier case between C.B.A. union and O.P.F. management:-- " Now I revert to section 50(3)(a) of I.R.O., 2002 which is reproduced below for the purpose of further analysis of the present case: Section 50(3)(a) of I.R.O., 2002: in relation to cases based on allegations of unfair labour practices brought before the Commission for trial of offences, or enforcement of or for redressal of individual grievances in respect of any right guaranteed or secured to any employer or worker by or under any law or any award or settlement, perform such functions and exercise such powers as are performed and exercised by a Labour Court. It is clear from the above provision of the law that NIRC's jurisdiction is limited to the cases of unfair labour practice. NIRC for the purpose of enforcement of, or for the redress of individual grievances in respect of any right guaranteed or secured to any employer or worker by or under any law or any award or settlement shall not have wide jurisdiction like that of Labour Court as spelled out in sections (46) of I.R.O., 2002 but shall deal with cases of unfair labour practice only in the manner laid down in section 46 or 33 as envisaged in section 49(4)(e) of I.R.O., 2002. Therefore I do not agree with the interpretation of the learned Counsel for the petitioner union but I find force in the arguments of the learned Law Officer of the respondent establishment that the above section only gives powers of Labour Court to NIRC with regard to unfair labour practice and not the jurisdiction. NIRC, therefore for the purpose of section 46 of I.R.O., 2002 shall not step into the shoes of Labour Court established under section 44 of I.R.O., 2002 and so the interpretation of the learned Counsel for the petitioner union is not convincing."

15. In view of the above I do not find force in the arguments of the learned Counsel for the petitioner union in this case also as I have no jurisdiction to determine the same. This petition is therefore dismissed for lack of jurisdiction. H.B.T./28/NIRC Petition dismissed.