2014 P L C 164
[Balochistan High Court]
Before Muhammad Noor Meskanzai and Muhammad Ejaz Swati, JJ
MERCK (PRIVATE) LIMITED through Manager and others
Versus
MEMBER LABOUR APPELLATE TRIBUNAL, BALOCHISTAN, QUETTA and others
Constitutional Petitions Nos.288 to 297 of 2012, decided on 31st October, 2013.
Industrial Relations Act (IV of 2008) ---
----S. 41 ---Constitution of Pakistan, Art.199 ---Constitutional petition ---Unfair labour practice ---
"Workman", proof of ---Back -benefits ---Principle of no work no pay ---Applicability ---Labour
Court allowed grievance notice and reinstated employees with back -benefits ---Judgment passed
by Labour Court was maintained by Labour Appellate Tribunal ---Plea raised by employer was
that employees were officers and not "workmen" ---Validity ---Only nature of job/work could
determine the status of worker/workman and designation was not determining factor ---
Employees claimed to have performed their duties as "workers", therefore, it was inevitable upon
them to have d isclosed their nature of job in grievance notice as well as in application under S.41
of Industrial Relations Act, 2008, but the same was not done and both the Courts below failed to
take note of such important aspect and feature of the case ---To invoke ju risdiction of Labour
Court for maintaining proceedings within the ambit of labour laws, the status of applicant as
"worker" and his termination should be the result of industrial dispute were sine qua non ---
Reinstatement of employees with back benefits was contrary to the principle "no work no pay" ---
Back -benefits were not to be allowed as punishment to employer or exemplary in favour of
employees but was meant just to accommodate an employee who had suffered on account of
losing his job and by not availing a gainful job within the intervening period ---Labour Court as
well as Labour Appellate Tribunal misread and misappreciated evidence/ material available on
record ---High Court set aside the judgments passed by two Courts below and remanded the case
to Labo ur Court for decision afresh --Petition was allowed accordingly.
1998 SCMR 644; 1991 SCMR 2300; 2001 SCMR 1928; 1993 SCMR 1370; 2004 PLC
213; 2002 SCMR 943; 2012 PLC 249; 2010 PLC 392; 2009 PLC 50; 2008 PLC 40; 1996 PLC
550; 2007 PLC 220; 2003 SCMR 74; P LD 2011 Pesh. 178; 2011 CLC 244; Muhammad Wali
Khan and another v. Gul Samar Khan and another PLD 2010 SC 965 and Muhammad Anwar v.
Abdul Hameed and others PLD 2010 Quetta 33 ref.
2011 PLC 286 rel.
Muhammad Ali Khan for Petitioners.
Azam Jan Zarko on and Inhamullah Khan for Respondents.
Date of hearing: 12th September, 2013.
JUDGMENT
MUHAMMAD NOOR MESKANZAI, J. --- By this common judgment, we propose to
dispose of the Constitutional Petitions Nos.288, 289, 290, 291, 292, 293, 294, 295, 296 and 297
of 2012, wherein almost common question of fact and law is involved.
2. Facts relevant for the disposal of instant pet itions are that the respondent No.3, was
appointed as officer in the petitioner company, since many years back. According to petitioner,
as per the terms and conditions of the employment duly agreed by the respondent No. 3 (in all
the petitions), their ser vices were terminated by awarding one month's pay in lieu of notice along
with all back -benefits of their employment. After termination of the services the private
respondent filed grievance petition before the 1st Labour Court, Quetta. The grievance petit ions
were contested by the petitioner by raising various preliminary legal objections regarding
maintainability of the proceedings particularly on the grounds that the private respondents are
officers and not workmen and their termination is not result of industrial dispute. Besides, the
services of the private respondents are governed by the Company Rules and the terms and
conditions of appointment letters empower the company to terminate the services etc.
3. After obtaining rejoinder to the grievance pe tition the 1st Labour Court framed following
issues for determination: ---
(i) Whether the applicants came (sic) within the definition of "Workman" under the
provisions of Industrial Relations Act, 2008 in view of his nature of work?
(ii) Whether the te rmination order of the applicant was in accordance with the law?
(iii) Whether the applicant has received his legal dues in full and final settlement? And
whether the applicant is entitled for the back benefits?
(iv) Whether the applicant is entitled f or the relief claimed for?
(v) Relief.
4. Thereafter, the parties were directed to adduce evidence in support of their respective
contentions whereupon the parties produced following witnesses: ---
AW-1 Abdul Khalid, AW -2 Ain ud Din Statement of appli cant, Asad Ullah RW -1 Nizam
ud Din, RW -2 Asad Ali Shah Factory Manager.
AW-1 Abdul Khalid, AW -2 Abid Ali Statement of applicant, Muhammad Shamrez RW -
1 Nizam ud Din, RW -2 Asad Ali Shah Factory Manager.
AW-1 Zia Ullah Khan, AW -2 Muhammad Ibrahim Statement of applicant, Noor ul
Rehman RW -1 Nizam ud Din, RW -2 Asad Ali Shah Factory Manager.
AW-1 Rizwan Ali, AW -2 Mir Muhammad Statement of applicant, Rizwan Ali RW -1
Nizam ud Din, RW -2 Asad Ali Shah Factory Manager.
AW-1 Muhammad Asif, AW -2 Muhammad Javed State ment of applicant, Muhammad
Ashraf RW -1 Nizam ud Din, RW -2 Asad Ali Shah Factory Manager.
AW-1 Shakeel Ahmed, AW -2 Ghulam Sarwar Statement of applicant, Muhammad
Aslam son of Muhammad Anwar. RW -1 Nizam ud Din, RW -2 Asad Ali Shah Factory
Manager.
AW-1 Sha keel Ahmed; Statement of applicant, Ahmed Shukaib RW -1 Nizam ud Din,
RW-2 Asad Ali Shah Factory Manager.
AW-1 Shakeel Barkat, AW -2 Mehrban Shah Statement of applicant, Muhammad Aslam
son of Muhammad Kabar Khan RW -1 Asad Ali Shah Factory Manager.
AW-1 Dau lat Khan, AW -2 Ghulam Mustafa Statement of applicant, Banaras Khan
RW-1 Nizam ud Din RW -2 Asad Ali Shah Factory Manager.
AW-1 Abdul Khalid, AW -2 Muhammad Asif Statement of applicant, Naeem Khan RW -1
Nizam ud Din, RW -2 Asad Ali Shah Factory Manager.
The learned Ist Labour Court, vide its judgment dated 29th June, 2011 allowed the
applications and directed reinstatement of the private respondents with all back benefits. The
petitioner feeling aggrieved of the judgment passed by the Ist Labour Court pre ferred Labour
Appeal bearing Nos.26, 27, 28, 29, 30, 31, 32, 33, 34 and 35 of 2011, before the Labour
Appellate Tribunal Balochistan, Quetta. The Learned Member Labour Appellate Court after
hearing the parties dismissed the appeal filed by the petitioner, hence instant Constitutional
petitions.
5. We have heard Mr. Muhammad Ali Khan Advocate for the petitioner; whereas Mr. Azam
Khan Zarkoon Advocate represented the private respondents. Learned counsel for the petitioner
contended that the Ist Labour Court committed material irregularity by entertaining incompetent
proceedings. It was further maintained that the private respondents are neither workmen nor were
terminated consequent upon Industrial dispute, therefore, there was no occasion for the
respondent s to have filed grievance petition before the Ist Labour Court. It was urged with
vehemence that without prejudice to above grounds even otherwise the applications filed by the
private respondents were not competent as the Company being a necessary party h as not been
impleaded in the case. It was stressed that the respondents were officers and as per the terms and
conditions of the appointment letters, the termination was on the basis of agreed terms. Learned
counsel submitted that the private respondents f ormed a Welfare Organization with the name of
Officers Welfare Organization and factually and practically bifurcated the nature and status of
their job from the employees who are workers/workmen. The learned counsel stated that the Ist
labour Court did not consider the evidence whereas the appellate Court though considered the
evidence, yet misread the same, with the result, the material available on record has been
misread, non -read and the documents available on record have been misconstrued and the facts
have been misappreciated. It was maintained that the affidavits were not attested, therefore, the
evidence of the deponents could not be taken into consideration. The learned counsel stated that
the respondent neither in the grievance notice nor in the ap plication filed under section 41 of the
IRA, described the nature of their job. The respondents simply stated that they are officer -cum-
workers whereas it was the bounden duty of the respondents to have disclosed the nature of their
work in order to enable the Court to determine as to whether really the respondents are workmen
as contemplated by IRA and Standing Orders Ordinance, 1968 or officers as narrated by the
petitioner. According to the learned counsel the Ist Labour Court as well as the Member Labou r
Appellate Tribunal Balochistan fell in serious error by accepting the application and reinstating
the respondents with back benefits. Learned counsel stated that the petitioner in rejoinder to
grievance petition and in its statement through representativ e before the Court categorically
stated that the respondents are 'officers' and do not fall within the category of 'workers/workmen'
and the termination is not on account of industrial dispute and this fact was not disputed by the
applicants, therefore, th e proceedings were incompetent. The learned counsel requested for
acceptance of the petition, setting aside the impugned judgment by way of rejecting the
application. He placed reliance on the following judgments: -
(i) 1998 SCMR 644, (ii) 1991 SCMR 2300 , (iii) 2001 SCMR 1928, (iv) 1993 SCMR
1370, (v) 2004 PLC 213, (vi) 2011 PLC 286 (vii) 2002 SCMR 943.
The learned counsel for the respondents vehemently opposed the submissions and stated
that there is no doubt in respect of the nature of job of respond ents. Though in the appointment
letters respondents have been shown as officers, yet the mere word "officer" does not take out the
status of the respondents from the category and ambit of 'worker' nor the word "officer" itself is
sufficient to make the res pondents "officers" The respondents did not had the power of hire and
fire nor were they enjoying any administrative power. They were doing work with their hands
and in fact performing clerical job, therefore, both the forums below rightly declared the
respondents/applicants 'worker'. It was further maintained that the petitioner by exercising
bureaucratic mind terminated the services of the respondents merely because the petitioner was
aggrieved of the formation of Officer Welfare Organization by the respo ndents. The respondents
produced overwhelming evidence to discharge the burden and furnished sufficient material to
justify the findings of the lower forums. Besides, there are concurrent findings of fact which
cannot be interfered with unless it is proved that the same are result of non -reading, misreading
and misappreciation of evidence. Similarly, this Court while sitting in constitutional jurisdiction
would not undertake the exercise of re -appraisal of evidence. Learned counsel stressed that while
exerc ising constitutional jurisdiction this court usually does not re -open a factual and closed
chapter. The learned counsel maintained that the 1st labour Court rightly re -instated the
respondents and the Labour, Appellate Tribunal rightly dismissed the appeal filed by the
petitioner. Reliance is placed on the following citations: ---
(i) 2012 PLC Labour page -249 (Labour) (SC), (ii) 2010 PLC Labour page 392 (SC) (iii)
2009 PLC 50, (iv) 2008 PLC Labour page -40, (v) 1996 PLC 550, (vi) 2007 PLC 220.
6. We have considered the arguments advanced by the parties' learned counsel and gone
through the record of the case with their able assistance. Perusal of the record reflects the
respondents were appointed on 23rd July, 1992. To better understand the controversy, i t would
be appropriate to reproduce the operative portion of the appointment letter: ---
"SUB: APPOINTMENT AS AN OFFICER:
This is with reference to your application dated 7 -6-1992 and your subsequent interview
and written test. We are pleased to appoint you as an Officer with the starting salary of Rs.1400
per month, consolidated allowance of Rs.200, an allowance of Rs.80 as permissible under the
rules and House Rent @ 45% of your basic salary, per month. At the time of joining as a Officer
you ar e required to produce: --
(1) Two Certificates of Character From two Gazetted Officers not below the rank of Grade -
18.
(2) Health Certificate from a Registered Practitioner.
(3) Chest X -Ray.
(4) Photo or attested copies of all your certificates and Identity Card.
(5) You will be on probation for a period of three months. During this period if your work is
found satisfactory you will be confirmed. During your probation if it is found that your work,
conduct and behavior is not satisfactory your serv ices will be terminated with immediate effect
without assigning any reason. After expiry of the probationary period your services are liable to
be terminated by the Management by giving one month's notice or one month's salary in lieu
thereof without assig ning any reason. If you wish to leave you are required to give one month's
notice or one month's salary in lieu of notice period. Further promotion will be upon your good
performance, conduct and behavior and also on the recommendation of your Manager conc erned
whose judgment will be final."
7. The perusal of the appointment letter reveals that some of the respondents were appointed
as officers without describing the nature of their job. Similarly, the other respondents/promoted
applicants also did not di sclose the nature of their previous and present job in their applications.
We know, only the nature of the job/work can determine the status of worker/workman and the
designation is not the determining factor. The respondents claim to have performed their duties
as workers, therefore, in our considered view, it was inevitable upon the applicants/respondents
to have disclosed their nature of job in the grievance notice as well as application under section
41 of IRA, 2008 but unfortunately same was not done a nd both the courts below failed to take
note of this important aspect and feature of the case, which has created an anomalous position.
Of course, the witnesses in their statements described the nature of job and the
applicants/respondents also in their Co urt statements narrated the description of work and
thereby claim to be workers. We are afraid, such course could not have been permitted for the
simple reason that the statement of witnesses as well as the applicants were beyond pleadings.
The law stands settled that the evidence beyond pleading is inadmissible. In this regard we are
fortified by the dictum laid down in the judgments reported in 2003 SCMR 74, PLD 2011
Peshawar 178, 2011 CLC 244 and in the case of 'Muhammad Wali Khan and another v. Gul
Sama r Khan and another reported in PLD 2010 Supreme Court 965, wherein it has been held: ---
"4. Heard. Accordingly the respondents/vendees in their defence never raised a plea
regarding the purchase of share in the said Khata through Mutation No.2518 dated 1 0-2-2001,
obviously no issue was framed by trial Court thus requiring any determination by the Court in
this regard; they never throughout sought any amendment in their written statement to add the
said plea. In the grounds of appeal filed by the responden ts such plea was never propounded and
resultantly the Appellate Court also was not supposed to give; the decision in this context. Even
in the Revision Petition, the plea of co -ownership was never set out, however, it seems that
through some Miscellaneous Applications, the respondents agitated their claim to share the suit
property as per section 20 of the Pre -emption Act, 1987, which was allowed by the High Court.
Whether the respondents could not do so and the High Court could award then the half share of
the suit property is the only question involved in the matter, which needs to be resolved in the
light of settled principles of law that no person can be allowed to prove his case beyond the
scope of his pleadings. In this regard, reliance can be placed u pon the judgments reported as
Binyameen and 3 others v. Chaudhary Hakim and another 1996 SCMR 336, Mst. Salima Bibi v.
Mst. Halima Bibi 1994 SCMR 1858, Government of West Pakistan (Now Punjab) through
Collector, Bahawalpur v. Haji Muhammad PLD 1976 SC 469 and Hakim Ali v. Muhammad
Salim and another 1992 SCMR 46."
8. Secondly, as per para -I of the grievance petition in the year 2005 the name of job and
post of the applicants were changed with motive to deprive the applicants from invoking the
jurisdiction of Labour Court but the applicants never resisted this situation and both the forums
did not take into account the consequence of such alleged attempt.
9. Furthermore, admittedly the respondents formed Officers Welfare Organization and the
same was regis tered under the Society Act and the Registration was subsequently cancelled. The
respondents filed a civil suit and in the said suit the respondents never claimed/agitated to be
workers but this aspect escaped notice of both the lower forms.
10. Besides, there is another inherent defect in the impugned judgment i.e. the learned 1st
labour Court Quetta while deciding the issues did not discuss the evidence. On the contrary the
learned Member Labour Appellate Tribunal Balochistan, Quetta referred the eviden ce, discussed
the same and formed its opinion at the strength of such evidence. In our estimation, this course
too was not legal and permissible because the appellate court could have considered/analyzed
and discussed the evidence provided the same had bee n discussed, analyzed and appreciated by
the 1st Labour Court either way and conclusion drawn qua the legality, validity, propriety and
admissibility of the evidence by the 1st Labour Court whereas this is not the case here.
11. It is quite strange that learned Member Appellate Tribunal in Para No.12 of his judgment
considered the effect of statement with reference to Article 132 of Qanun -e-Shahadat Order,
1984 and impact of non -disputing a particular portion of such statement and concluded that the
statement of A.W.1 and 2 have not been disputed; therefore, the respondents are 'workers'. The
learned Member Labour Appellate Tribunal ignored the fact that the respondent in his rejoinder
and statements before Court categorically stated that the applicants ar e neither workman nor
were terminated in consequence of any industrial dispute. For the sake of convenience Paras
Nos.3 and 4 of the affidavit are hereby reproduced:
"3. That there is no applicability of labour Laws as the applicant was not a workman but was
appointed/promoted in management level as per the terms and conditions of employment duly
agreed by him, hence the application of the applicant is not maintainable".
"4. That the termination of the applicant was/is not in consequence to any Industri al dispute
nor in respect of any right guaranteed or secured to him by or under any law or any award or
settlement for the time being in force hence the applicant is not entitled to move his application
under section 41 of Industrial Relation Act, 2008".
12. Admittedly this stance and stand of the petitioner was never disputed. For the sake of
convenience the entire cross -examination on the statement of representative of petitioner in C.P.
No.296 of 2012 is hereby reproduced: ---
13. A bear perusal of th e above cross -examination suggests that the statements remained
unchallenged and this particular portion of statement has not been denied and disputed nor a
counter rejoinder to refute this allegation has been filed by the applicants before the 1st Labour
Court.
14. It appears that the learned Member Labour Appellate Tribunal did not go through the
entire record. Legally, morally and ethically two different yardsticks cannot be applied on same
subject. Therefore, on the same analogy, had the learned Membe r Labour Appellate Tribunal
applied the same authority cited by him to the case of petitioner i.e. looking the rejoinder and
statement of petitioner, the position might have been absolutely different. Similarly, the
admissibility of the statements of A.Ws. is also controversial and questionable, admittedly the
A.Ws. were employees of the Company and their services have also been terminated and the
witnesses have admitted that they had initiated proceedings against the Company which are still
sub judice. In such state of affair, whether on account of clash of interest the statements of the
A.Ws. could be believed in view of the dictum laid down by this Court in the judgment titled as
'Muhammad Anwar v. Abdul Hameed and others reported in PLD 2010 Quetta 33, w herein it has
been held as under: ---
"13. According to statement of Syed Muhammad Hashim, he has sold the superstructure on
7th November, 2000 to one Asghar Khan son of Sala Gul against sum of Rs.750,000, though it
appears from the statement, no document or agreement has been produced; neither there is any
document available on record nor the same has been exhibited. The trial Court while resolving
the issue committed various illegalities; firstly statement of all R.Ws. were inadmissible, because
they wer e party in same eviction applications and were trying to take benefit of their own
statements by appearing as witnesses in the same proceedings and in the same court
simultaneously. There is no cavil with the legal preposition that evidence of such witness , who is
party in eviction proceedings is inadmissible against landlord. In this regard, I am supported by
the judgment of honourable apex Court reported in PLD 1991 SC 645, wherein it has been
observed as under: ---
----S. 13 ---Tenant producing another tenant as his witness against landlord in proof of his
averments in written statement ---Evidentiary value of ---Such witness having admitted grievance
against landlord, his evidence was kept out of consideration.
So all ocular evidences produced by respo ndents are hereby declared inadmissible, as
such rejected."
15. There is no cavil to the proposition that to invoke the jurisdiction of Labour Court for
maintaining proceedings within the ambit of labour laws the status of an applicant as worker and
his termination should be the result of an industrial dispute are sin qua non. Similarly, the
reinstatement of the respondent with back benefits appears to be contrary to the principle i.e. "no
work no pay". We know that the back -benefits are not to be allowed as a punishment to the
Company or exemplary in favour of applicants but is meant just to accommodate an employee
who suffers on account of losing his job and by not availing a gainful job within the intervening
period. By holding the view we are fortified by the dictum laid down in the judgment titled as
'Messrs Allied Precision Engineering Products (Pvt.) Ltd. through Notified Factory Manager and
others v. Jhanda Khan Maree and others' reported In 2011 PLC Quetta 286, wherein it has been
held as under: ---
"The statement in the grievance application and statement made in court are in our
opinion not sufficient to establish that the respondents remained unemployed and did not engage
in gainful venture. The record also reflects that even till date they hav e not joined their duties nor
demonstrated that they attempted to do so, as such, on the principle of "no work no pay", we
hold that the respondents are not entitled to receive full back -benefits. However, it is reasonable
to presume that a person who is r emoved from service would not be to get alternate employment
immediately or be able to set himself up in any gainful venture and it would take a few months to
do so. Accordingly, the respondents would be entitled to receive back -benefits for a period of
three months from the date of their removal from service."
For the foregoing reasons, we are of the considered opinion that the 1st Labour Court as
well as learned Member Labour Appellate Tribunal misread and misappreciated the
evidence/material available on record, as such; the petitions are accepted and the judgments
dated 29th June, 2011 passed by the learned Presiding Officer, First Labour Court, Quetta and
17th April, 2012 passed by the learned Member, Labour Appellate Tribunal Balochistan, Quetta
are set aside. The cases are remanded back to the 1st Labour Court Balochistan, Quetta with
direction to allow an opportunity to applicants to amend their applications and mention the
description of job, if so advised and to decide the matters afresh in accor dance with law. The
parties shall endure their own costs.
MH/117/Bal. Case remanded.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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