Meezan Bank vs Nasir Jalal Awan etc

Judgment Sheet

LABOUR APPELLATE TRIBUNAL,

KHYBER PAKHTUNKHWA

JUDICIAL DEPARTMENT

LCR No.3-A of 2012

JUDGMENT

Date of hearing........................30/11/2012........................................... Petitioner...(Meezan Bank) by Mr. Abdur Rehman Qadir, Advocate.............

Respondent...(Nasir Jalal Awan) by Mr. Aamir Javed, Advocate................

YAHYA AFRIDI, J:- Petitioners through instant revision petition under Section 51 (4) of Khyber Pakhtunkhwa Industrial Relation Act, 2010 (“Act of 2010”) impugned the judgment and order dated 02.06.2012 of Labour Court, Haripur, whereby, the application filed by present petitioner for return of Grievance Petition to the respondent for presentation before the proper forum was dismissed.

2.The brief and essential facts leading to the present revision petition are that the present respondent was an employee of the petitioners M/S Meezan Bank Limited (“Bank”); and that his services in the Bank were terminated by the Bank on the charges of misconduct and embezzlement vide order

dated 01.06.2010; that the respondent impugned his dismissal by filing Grievance Petition before Labour Court, Haripur; that the Bank when put on notice, contested the Grievance Petition; and that during the proceedings before the Labour Court, the learned counsel representing the Bank raised objection that Labour Court has got no jurisdiction to adjudicate upon the matter in view of the enactment of the Industrial Relations Act, 2012 by filing application for the return of the Grievance Petition for its presentation before the proper forum; the respondent contested the said application by filing reply thereto;

and the Labour Court after hearing the arguments dismissed the said application vide order dated 02.06.2012; and that the Bank being aggrieved of the said order preferred instant revision petition before this Tribunal.

3.Learned counsel for the petitioners has vehemently argued that the petitioner is a Banking Company having branches all over Pakistan and hence come within the purview of ‘Trans-provincial Establishment’, as envisaged under the Industrial Relations Act, 2012 (“Act of 2012”); that section 33

read with section 54 (h) of the Act of 2012, expressly provide redressal of ‘individual grievance’, which would include the grievance of the present respondent; and hence National Industrial Relations Commission (“NIRC”) would have the jurisdiction to adjudicate even the grievance of the respondent;

that subsection 5 of section 57 of Act of 2012 bars the Labour Court from entertaining any application or proceedings in respect of any matter, which falls within the jurisdiction of NIRC and the present matter squarely falls in the said category; that the Act of 2012 has overriding effect over other laws, as clearly provided under section 87 of the Act of 2012; and that as the petition has been filed under the repealed Industrial Relations Act, 2008 (“Act of 2008”), the proceedings thereunder have been expressly saved after the commencement of the proceedings under Section 88 of the Act of 2012.

4.Learned counsel for the respondent in response to the submissions made by the learned counsel for the petitioner candidly accepted that the petitioner, being a Banking Company having its branches in all the provinces would fall under the

purview of ‘Trans-Provincial Establishment’, as envisaged under the Act of 2012; he further contended that though the petition was stated to have been filed under Industrial Relations Act, 2008 but the same had expired on 30.04.2010 and the Act of 2010 was given effect from 01.05.2010, hence the petition would be taken to have been filed under Act of 2010 and not under Act of 2008; that the Act of 2012 does not provide for transfer of cases from Labour Court to NIRC or bar of jurisdiction of Labour Court or abatement of proceedings from the Labour Court and hence, the proceedings pending before the Labour Court would continue according to law; that the provisions of section 82 of Act of 2010, whereby NIRC was abolished and all its cases were transferred to Labour Court, whereas no such provisions for transfer is provided under the Act of 2012; that no provision is provided in the Act of 2012 for ouster of jurisdiction, especially when cognizance has already been taken by the Labour Court, and hence the proceedings before the same forum could continue; and finally the learned counsel contended that the Act of 2012 was promulgated on

14.03.2012 and under subsection 4 of section 1 thereof, it was to come into force at once, and would have no retrospective effect, hence the proceedings pending before the Labour Court should continue.

5.The valuable arguments of the learned counsel for the parties have been duly noted and the available record thoroughly considered.

6.The salient features of the Act of 2012 and the admitted facts, relevant to the present case, are as follows:

I. The provisions of the Act of 2012 were to take effect from the date of its enactment i.e. 14.03.2012, as provided under section 1(4) (Supra);

II. Messrs Meezan Bank Limited is an ‘industry’ providing services in more than one province and hence falls

within the purview of ‘Tans-

Provincial’, as envisaged under

subsections (xvii) and (xxxii) of section 1 of the Act of 2012;

III. National Industrial Relations

Commission (“NIRC”) has the

jurisdiction and authority, ‘inter alia’, under subsection (h) of section 54 of the Act of 2012 to deal with cases of individual grievances in the manner prescribed in section 33 therein and has a bench functioning at Peshawar;

IV. The Labour Court and the Labour Appellate Tribunal have been barred to take any action or proceedings in respect of any matter, which falls within the jurisdiction of the NIRC, as provided under subsection 5 of section 57 of the Act of 2012;

V. The provisions of the Act of 2012 have been rendered overriding effect over all other laws under section 87 therein;

VI. The proceedings commenced or actions taken under the repealed law of Act of 2008 shall be deemed to have been made under the provisions of Act of 2012, as provided under the saving clause of section 88 provided therein;

VII. There is no express provision of

transfer of proceedings pending before the Labour Court under the repealed laws to NIRC, as have been provided for in previous legislation;

VIII. NIRC has authority to call and withdraw from a Labour Court of any province, an application, proceedings or an appeal relating to unfair labour practice, which fall within the jurisdiction of the NIRC, as has been provided under subsection 2 of section 57 of the Act; this authority is, however, not expressly extended for calling for and withdrawing a case pending before the Labour Court relating to an ‘individual grievance’, as is the case in hand.

IX. That despite the enactment of Act of 2012, the Act of 2010 was not repealed and has remained in the field.

7.The innovation introduced in the Act of 2012 is the concept of ‘Trans-Provincial’ ‘Industry’, which was hitherto not provided within the domain

of NIRC in the previous Labour laws of our country.

It is also noted that the intention of the legislature was to avoid conflicting decisions and infact to ensure uniformity in the decisions and thereby NIRC was vested with the jurisdiction to adjudicate all the matters relating to ‘Trans-Provincial’ ‘Industry’.

8.Thus, in the present legal disposition, the legislature has clearly divided and demarcated two legal forums;

Firstly, we have NIRC established under Act of 2012 which is to adjudicate;

i. matters relating to ‘Trade

Unions’; and

ii. matters relating to ‘Trans-

Provincial’ ‘Industries’ and

‘Establishments’ and even the

personal grievance of its

employees.

Secondly, we have Labour Courts established under Act of 2010, which is to adjudicate all other matters relating to a ‘workmen’.

9.Reviewing the record of the present case, it is noted that the grievance petition of the respondent is

pending before the Labour Court at Haripur and the bench of NIRC has been vested with the jurisdiction under section 54 (h) of the Act of 2012 to decide even the ‘individual grievance’ of an employee of a ‘Trans-Provincial’ ‘Industry’, such as the present respondent, which is functioning at Peshawar; the matter is only as to the transfer of proceedings from the Labour Court at Haripur to the bench of NIRC at Peshawar, when there is no express provision for such transfer of proceedings provided under the Act of 2012.

10.The issue being the change of forum introduced by the Act of 2012, which solely effects the procedure of adjudication of a grievance petition, the same would thus have retrospective effect, unless it is shown that the petitioner would be prejudiced, caused any hardship or any rights vested in him or matured under the previous law are to be adversely affected.

11.In this regard, the learned counsel for the respondent was asked to point out, how the respondent would be caused any hardship, prejudice or any of his rights were to be affected by the said

change of forum. His response was that the respondent would now have to seek his remedy at Peshawar instead of Haripur. This to our mind does not fall within the purview of the exceptions to the general rule of retrospectively of procedural law, especially the provision for change of legal forum.

12.This matter has been a subject of discussion in various judgments of the apex Court and has finally been settled authoritatively in Air League’s case (2011 SCMR 1254), wherein it was held that;

“21.The question of applicability of any law with retrospective effect has been dealt with by this Court in the case of Gul Hassan and Co. v. Allied Bank of Pakistan (1996 SCMR 237), wherein after examining plethora of case law, Mr. Justice Saleem Akhtar, as he then was, observed that Statute providing change of forum, pecuniary or otherwise, is procedural in nature and has retrospective effect unless contrary is provided expressly or impliedly or it effects the existing rights or causes injustice or prejudice. The relevant para from the said judgment is reproduced hereinbelow:- “7. It is well-settled principle of interpretation of statute that where a statute affects a substantive right, it operates prospectively unless “by express enactment or necessary indictment” retrospective operation has been given (Muhammad Ishaq v. State PLD

1956 (Pak.) 256 and State v. Muhammad Jamil, PLD 1965 SC 681). This principle was affirmed in Abdul Rehman v. Settlement Commissioner (PLD 1966 SC 362). However statute, which is procedural in nature, operates retrospectively unless it affects an existing right on the date of promulgation or causes injustice or prejudice the substantive right. In Adnan Afzal v. Capt. Sher Afzal (PLD 1969 SC 187), same principle was re- affirmed and it was observed:- “The next question, therefore, that arises for consideration is as to what are matters of procedure. It is obvious that matters relating to the remedy, the mode of trial, the manner of taking evidence and forms of action are all matters relating to procedure. Crawford too takes the view that questions relating to jurisdiction over a cause of action, venue, parties pleadings and rules of evidence also pertain to procedure, provided the burden of proof is not shifted. Thus; a statute purporting to transfer jurisdiction over certain causes of action may operate retrospectively. This is what is meant by saying that a change of forum by a law is retrospective being a matter of procedure only. Nevertheless, it must be pointed out that if in this case process any existing rights are affected or the giving of retroactive operation cause inconvenience or injustice, then the Courts will not even in the case of a procedural statute, favour an

interpretation giving retrospective effect to the statute. On the other hand, if the new procedural statute is of such a character that its retroactive application will tend to promote justice without any consequential embarrassment or detriment to any of the parties concerned, the Courts would favourably incline towards giving effect to such procedural statutes retroactively.”

The same view was expressed in Ch. Safdar Ali v. Malik Ikram Elahi and another (1969 SCMR 166) and Muhammad Abdullah v. Imdad Ali (1972 SCMR 173), which was followed in Bashir v. Wazir Ali (1987 SCMR 978), Mst. Nighat Yasmin v. N.B of Pak. (PLD 1988 SC 391) and Yusuf Ali Khan v. Hongkong and Shanghai Banking Corporation, Karachi (1994 SCMR 1007).

From the principle enunciated in these judgments it emerges that statute providing change of forum pecuniary or otherwise is procedural in nature and has retrospective effect unless contrary is provided expressly or impliedly or it affects the existing right or causes injustice or prejudice.”

It is discussed in the case of Adnan Afzal v. Sher Afzal (PLD 1969 SC 187), wherein claim for maintenance was made under section 488 of the Code of Criminal Procedure before the City Magistrate which was ultimately

transferred to the Court of the District Magistrate, where the respondent moved an application that in view of the provisions of the West Pakistan Family Courts Act, 1964, published in the Gazette on the 18th of July, 1964, the proceedings should be filed, as the Family Court was vested with exclusive jurisdiction under section 5 thereof. The District Magistrate on the 9th of December, 1967, accepted the plea and directed the appellant to seek his remedy before the Family Court. The matter came up before this Court and this Court observed that the comparison of the concerned provisions indicates that the provisions of the West Pakistan Family Courts Act are of a more beneficial nature which enlarge not only the scope of the enquiry but also vest the Court with powers of giving greater relief with a right of appeal either to the District Court or to the High Court; Furthermore, the combined effect of sections 5 and 20 of the Act is clearly to give exclusive jurisdiction to the Family Courts without, diminishing or curtailing the rights already possessed by a litigant with regard to the scheduled matters. Ultimately the Court held that the Family Courts Act had changed the forum, altered the method of the trial and empowered the Court to grant better remedies; it has, thus, in every sense of the term, brought about only procedural changes and not affected any substantive right; according to the general rule of interpretation, therefore, a procedural statute is to be given retroactive effect unless the law contains a contrary indication; There is no such contrary indication in the West Pakistan Family Courts Act; therefore, the Act also affected the pending proceedings and the District Magistrate was right in holding that the Courts of Magistrates no longer had the jurisdiction either to entertain, her or adjudicate upon a matter relating to maintenance; he was, however, wrong in dismissing the application, for, if he had no

jurisdiction to adjudicate, the only order he could have passed on the application was to direct that the papers be returned to the applicant for presentation in the proper Court. In view of the law laid down in the said case, it is clear that mere change of forum does not affect the rights of a person.”

(Emphasis provided)

Thus keeping the ‘ratio decidendi’ of the above judgment as our beacon, it is safe to state that the provision of forum of NIRC provided for personal grievance under the Act of 2012 would be procedural in nature. Hence, it would have a retrospective effect and apply to even pending proceedings before the Labour Court.

13.As far as the return of plaint to the respondent is concerned, this Tribunal finds that the same would lead to inconvenience, and in some cases may result in legal complications. Thus, it ought not to be ordered in the present circumstances. As stated earlier, the Act of 2012 has introduced a change of forum and if the said provision is to apply retrospectively, then the parties are not to face any legal disability much less inconvenience for the said transfer of forum to take effect.

14.Accordingly, for the reasons stated

hereinabove, the order of labour Court dated 02.06.2012 is set aside and the Labour Court is directed to transfer the Grievance Petition alongwith the record to the bench of NIRC at Peshawar, forthwith.

Surely, the worthy NIRC would commence the proceedings from where it had ended before the Labour Court and that the matter be expedited, as the same relates to valuable rights of the respondent, which are pending adjudication for sufficient long time.

The parties are to appear before the worthy Bench of NIRC at Peshawar on 26th December,

15.The present revision petition is accepted in the above terms.

LABOUR APPELLATE TRIBUNAL

Announced.

Dt.30.11.2012

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