2015 P L C 195
[Balochistan High Court]
Before Muhammad Kamran Khan Mulakhail and Jamal Khan Mandokhail, JJ
GELCAPS PAKISTAN EMPLOYEES UNION through General Secretary
versus
PROVINCE OF BALOCHISTAN through Chief Secretary and another
Constitutional Petition No.61 of 2014, decided on 11th March, 2014.
Balochistan Industrial Relations Act (XIII of 2010) ---
----Ss. 17 & 41--- Industrial and Commercial Employment (Standing Orders) Ordinance (VI of
1968), S.O.11- A---Constitution of Pakis tan, Art.199--- Constitutional petition --- Maintainability -
-- Unfair labour practice by employer --- Closure of establishment --- Grievance application ---
Petitioner, who claimed to be General Secretary of Employees Union of the Establishment, had
sought writ against the establishment, for declaration to the effect that actions and reactions of
the establishment were unfair labour practice and refraining the establishment from terminating,
removing, retrenching and dismissing the office -bearers and workers/mem bers of the employees
union, or from closing down the establishment ---Validity ---No application of the establishment
was pending before the Labour Court for permission to close down the establishment and to
terminate the services of its employees ---Petitio ner, in the capacity of individual worker or being
representative/office- bearer of Labour Union, despite having the status of Collective Bargaining
Agent, could not initiate proceedings on the basis of apprehended cause of action, which might
have been in his mind, but did not exist actually ---No vested right of the petitioner was likely to
be affected for the simple reason that no such order was passed ---Question of 'unfair labour
practice' was linked with a separate and independent cause of action, which being a pure question
of facts, required the evidence to prove or disprove the same and could not be agitated, and
resolved in constitutional jurisdiction of High Court ---Proper remedy under S.41 of Balochistan
Industrial Relations Act, 2010, was available to the petitioner/Labour Union in case they were
aggrieved from termination of services ---Every employer had a right to terminate the services of
his employee on the ground, which was legally available to it; provided that the procedure as
contemplated by the prevailing law was followed in letter and spirit---Provisions of Balochistan
Industrial Relations Act, 2010 being basic and comprehensive in nature, had provided a complete
procedure for redressal of any such grievance---Jurisdiction of High Court under Art.199 of the
Constitution, could not be invoked, when a well defined alternate remedy was already available
to the petitioner ---Petition which involved the disputed question of facts could not be entertained
in constitutional jurisdiction of High Cour t Establishment in question, was a private limited
company being a body corporate against which the petition under Art.199 of the Constitution,
was not maintainable.
Salahuddin's case PLD 1975 SC 244 and Maqsood Ahmed Toor's case 2000 SCMR 928
ref.
Muhammad Nishat Warsi for Petitioner.
Nemo for Respondents.
Date of hearing: 30th January, 2014.
JUDGMENT
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. --- This petition has been filed
through the petitioner who described himself as the General Secretary of GELCAP Pakistan
Employees Union, wherein he sought a writ against the management of the respondents'
establishment (MESSRS GELCAPs (Pvt.) Limited) and th eir actions and reactions are sought to
be declared as to devilment of unfair labour practice. An injunction is also sought to refrain the
respondents from terminating, removing, retrenching and dismissing the office bearers and the
workers/members of the petitioner's union, or otherwise from closing down the establishment.
2. The learned counsel for the petitioner referred to order dated 19- 3-2012 passed by the
learned IIIrd Labour Court, Balochistan at Hub, and stated that previously on strength of the
afore -referred order the respondents' establishment was closed down, however, subsequently, it
was re- established and certain workers have also been employed. He further contended that the
petitioner's labour union submitted a 'Charter of Demand' on behalf of the workers of the
establishment and the petitioner apprehends that he, the office bearers and the workers/ members
of the union will be removed from their employment due to hot perusal of their charter of
demand. He further averted that the removal of any employee/worker or the office bearers of
their union will amount to unfair labour practice, therefore, directions were sought to restrain the
private respondents from taking any such action against the petitioner, the office bearers and the
members of the union.
3. We have heard the learned counsel at length; have gone through the case file and the
relevant provisions of prevailing law. It is pertinent to add that in the Constitution of the Islamic
Republic of Pakistan, 1973, (the Constitution), on 19th April, 2002 after having received the
assent of the President of Pakistan, the 18th Constitutional Amendment Act -X of 2010, was
promulgated. Whereby, on omission of concurrent list, contained in Part -II of the fourth schedule
of the constitution, the m atters relating to labour laws have been devolved in the Provinces.
Whereas, in the Province of Balochistan a new labour law namely, Balochistan Industrial
Relations Act, 2010 ("The Act, 2010") was promulgated, but the West Pakistan Industrial and
Commerci al Employment (Standing Orders) Ordinance, 1968 is still in field, wherein its
schedule contains the standing Order 11- A, which is related to closure of establishment, while
section 41 of the Act 2010 pertains to the grievance of any individual, as well as , to the
Combined Bargaining Agent ("CBA") for redressal of any such grievance. The both provisions
being relevant are reproduced here under: ---
The section 41 of Act, 2010 provides as under: ---
41. Redressal of individual grievance.--- (1) A worker m ay bring his grievance 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 to the notice of his employer in writing, either himself or through his shop
steward or collective bargai ning agent within three months of the day on which the cause of such
grievance arises.
(2) Where a worker himself brings his grievance to the notice of the employer, the employer
shall, within fifteen days of the grievance being brought to his notice, communicate his decision
in writing to the worker.
(3) Where a worker brings his grievance to the notice of his employer through his shop
steward or collective bargaining agent, the employer shall, within seven days of the grievance
being brought to his notice, communicate his decision in writing to the shop steward or as the
case may be the collective bargaining agent.
(4) If the employer fails to communicate a decision within the period specified in subsection
(2) or, as the case may be subsection (3), or if the worker is dissatisfied with such decision, the
worker or the shop steward may take the matter to his collective bargaining agent or the Labour
Court or, as the case may be, the collective bargaining agent may take the matter to the Labour
Court, and where the matter is taken to the Labour Court, it shall give a decision within seven
days from the date of the matter being brought before it as if such matter were an industrial
dispute:
Provided that a worker who desires to so take the matter to t he Labour Court shall do so
within a period of two months from the date of the communication of the employer or, as the
case may be from the expiry of the period mentioned in subsection (2), or subsection (3), as the
case may be.
(5) In adjudicating and determining a grievance under subsection (4), the Labour Court shall
go into all the facts of the case and pass such orders as may be just and proper in the
circumstances of the case.
(6) If a decision under subsection (4) or an order under subsection (5) given by the Labour
Court or a decision of the Tribunal in an appeal against such a decision or order is not given
effect to or complied with within a week or within the period specified in such order or decision,
the defaulter shall be punishable with i mprisonment for a term which may extend to one year, or
with fine which may extend to fifty thousand rupees, or with both.
(7) No person shall be prosecuted under subsection (6) except on a complaint in writing ---
(a) by the workman if the order or decision in his favour is not implemented within the
period specified therein; or
(b) by the Labour Court or Tribunal, if an order or decision thereof is not complied with.
(8) For the purposes of this section, workers having common grievance arising out of a
common cause of action may make a joint application to the Labour Court."
While the provision of Standing Order 11 -A reads as follows: ---
Industrial and Commercial Employment (Standing Orders) Ordinance, 1968:
11-A. Closure of establishment .--- Notwithstanding anything contained in Standing Order 11, no
employer shall [terminate the employment of more than fifty percent of the workmen or] close
down the whole of the establishment without prior permission of the Labour Court in this behalf,
except in the event of fire, catastrophe, stoppage of power supply, epidemics or civil commotion.
The above quoted provisions of two different statutes clearly provide the procedure for
closure of establishment, as well as, the procedure for redressal of grievance of any individual to
be brought before the labour court either by himself or through his shop steward or through
collective Bargaining Agent (CBA). While subsection (8) of section 41 of the Act, 2010
completely addresses the grievance of the pet itioner, under which the workers having a common
grievance arising out of a common cause may make a joint application to the labour court. The
apprehension of the petitioner could not be substantiated in the light of relevant law, as well as,
the law relat ing to issuance of writ. Presently, no application of employer/respondent is pending
before the labour court for permission to close down the establishment and to terminate the
services of its employees. The petitioner in the capacity of individual worker or being
representative/office bearer of labour union, despite having the status of CBA cannot initiate
litigation on the basis of apprehended cause of action, which might have born in his mind but
does not exist physically. No vested right of the petitioner is likely to be affected for the simple
reason that no such order is in field.
4. We have noticed while perusing the case file, particularly, the documents appended
thereto, whereby , the referred to order dated 19- 3-2012, passed by the learned 3rd La bour Court,
on an Application No.1 of 2012, filed by respondents Nos.2 and 3, begins with following
passage:
"Brief facts of the application are that applicants filed the instant application with
averments that applicant's establishment is a corporate b ody and registered under the Factories
Act, 1934 as well as Companies Ordinance, 1984 as well as under Employees Old Age Benefit
Act, 1976 and under the Provincial Employees Social Security Ordinance, 1965." ..
The referred to passage of the order supra on which the petitioner relies, as the same has
been filed by him, states that the respondent's establishment is registered and functioning under
the Companies Ordinance, 1984. Since the respondent's organization/ establishment is neither
engaged nor perf orming the affairs of the State but enjoys the status of private business entity.
Thus, for all practical purposes and jurisdiction, the respondent's establishment is private limited
company. However, the question of 'unfair labour practice' is linked with a separate and
independent cause of action, which being a pure question of facts, requires the evidence to prove
or disprove the same. Thus, cannot be agitated and thereby cannot be resolved in constitutional
jurisdiction of this court.
5. Be that as it may, a proper remedy under the provision of section 41 of the Act, 2010 is
available to the petitioner's labour union in case they felt aggrieved from termination of their
services. Needless to add here that this is the right of every employer to terminat e the services of
his employee on any ground, which is legally available to it, provided that the procedure as
contemplated by the prevailing law is followed in letter and spirit. The provisions of the Act,
2010 being basic and comprehensive in nature, provides a complete procedure for redressal of
any such grievance.
For the aforesaid reasons, we are of the view that: (1) the jurisdiction of this court under
Article 199 of constitution cannot be invoked, when a well -defined alternate remedy is already
available to the petitioner. (2) The petition involved the disputed question of facts which could
not be answered in the writ jurisdiction of this court and (3) the respondents' establishment is
purely private limited company being a body corporate, against which the petition under the
Article 199 of the Constitution is not maintainable. Reference is made to the Salahuddin's case
PLD 1975 Supreme Court 244 and Maqsood Ahmed Toor's case 2000 SCMR 928.
Thus, the petition being not maintainable is accordingl y dismissed in limine.
HBT/36/Bal. Petition dismissed.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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