IN THE LAHORE HIGH COURT LAHORE

Stereo. H C J D A 38.
Judgment Sheet
IN THE LAHORE HIGH COURT LAHORE
JUDICIAL DEPARTMENT
W.P.No.4240/2013
JUDGMENT
Ejaz Rasool.
VERSUS
Member NIRC, etc.
Date of hearing :19.11.2013
Petitioner by:
Mr. M. Irfan Khan Ghazanavi Advocate.
Respondents by: MirzaAamer Baig Advocate.
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Muhammad Khalid Mehmood Khan, J.
Through
this
single judgment I propose to decide writ petition No.4240/2013 and
2683/2013 as both the writ petitions are on the same proposition of
law.
2.
This Court in a judgment dated 26.11.2012 passed in writ
petition No.22454/2012 titled Rana Muhammad Rafi V. Member,
NIRC, etc. has held as under:“Para No.25: Where the grievance is in violation of section 33(8) of
PIRA, 2010 read with Standing Order 12(3) of the Industrial and
Commercial Employment (Standing Order) Ordinance, 1968, the
grievance will be within the cognizance of Labour Court established under
IRA 2012 as defined in Section 2(xx) of IRA, 2012.
Para No.32:
There is no ambiguity in the provisions of Section 57(2)(b)
of IRA 2012 which states that where the dispute has arisen out of unfair
Labour practice, the jurisdiction of NIRC is absolute but where there is no
allegation of unfair Labour practice, the jurisdiction will be triable by the
Labour Court where the cause of action arisen.
W.P.No.4240/2013.
Para No.35:
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The above said provision of IRA is clear that any dispute
between the employer and member of that between the employer and
member of that establishment which operates in Islamabad Capital
Territory will be triable by the Labour Court established in Province;
hence the Labour Court at Rawalpindi will hear the grievance of the
concerned parties”.
3.
On 23.8.2010, the respondent No.3 terminated the petitioners
services. The petitioners on 28.1.2011 challenged their termination
order dated 23.8.2010 under Section 37(4) of Punjab Industrial
Relation Ordinance, 2010 read with Section 12(3) of Standing Order
of 1968. The learned Labour Court vide order dated 17.5.2011
suspended the petitioners termination orderstill final disposal of their
grievance petition. The respondent PTCL challenged the order dated
17.5.2011 by way of revision petition No.LHR 306/11, the said
revision petition was, however, dismissed on 25.4.2012, the
respondent PTCL further impugned the order dated 17.5.2011 and
25.4.2012 before this Court through writ petition No.16801/2012
which was disposed of by this Court by maintaining the order dated
17.5.2011 and 25.4.2012, the order of this Court was that the Labour
Court will decide the petitioners grievance petitionswithin a period of
15 days. The petitioners grievance petitionswere pending disposal
when on 13.11.2012 learned counsel for respondent submitted an
order dated 13.11.2012 of respondent No.1/Member NIRC passed
under Section 57(2)(b) of IRA on the application of respondent No.1
whereby
the proceedings before the learned Labour Court were
ordered to be stayed. After the pronouncement of judgment of this
Court in writ petition No.22454/2012 on 26.11.2012, the petitioners
W.P.No.4240/2013.
3
filed an application with the NIRC for recalling of order dated
13.11.2012. The learned Labour Court on 13.11.2012 accepted the
petitioners application and recalled its order. The respondent PTCL
assailed the judgment dated 26.11.2012 of this Court passed on writ
petition No.22454/2012 before the Hon’ble Supreme Court of
Pakistan, the Hon’ble Supreme Court of Pakistan was pleased to
suspend the operation of judgment of thus Court dated 26.11.2012.
After the order of Hon’ble Supreme Court of Pakistan dated 07.1.2013
the respondent No.1 again started to proceed on an individual
grievances not based on unfair Labour practice and directed to revive
its earlier order vide order dated 6.2.2012. Through thepresent
constitutional petitions, the petitioners have assailed the order dated
06.2.2012 .
4.
Respondents No.3 to 6 filed their written statement and raised
the objection that the judgment passed in writ petition No.22454/2012
dated 26.11.2012 has been suspended by the Hon’ble Supreme Court
of Pakistan in CPLA No.1810/2012 and as such the member NIRC
was justified to pass the impugned order.
5.
Heard. Record perused.
6.
The only question requires determination is whether the order
of Hon’ble Supreme Court of Pakistan for suspension of the judgment
of this Court whereby a declaration was granted by this Court
declaring that where the dispute between the employee and the
employer having trans provincial character arose on the basis of unfair
Labour practice the exclusive jurisdiction is with the NIRC but where
W.P.No.4240/2013.
4
the dispute is an individual dispute between the employee and the
employer having trans provincial character the respective Labour
Court has the exclusive jurisdiction as the said judgment will be
deemed the judgment in rem. The petitioner has placed on record
photo copy of order dated 07.1.2013 of the Hon’ble Supreme Court of
Pakistan passed in CPLA No.1810/2012 which is read as under:“Heard the learned ASC for the petitioner. Notice of this petition be issued
to the respondents for a date in the first week of February, 2013. In the
meantime, operation of the impugned judgment shall remain suspended”.
7.
Respondent No.1 on relying the order of Hon’ble Supreme
Court of Pakistan passed the following order:“In pursuance of order dated 07.01.13 of Honourable Supreme Court of
Pakistan in Civil Petition No.1810/12 operation of judgment dated
26.11.12 of the Honourable Lahore High Court, Lahore passed WP
No.22454/12 has been suspended and administrative order passed by
Honourable Chairman of this Commission dated 04.12.2012 has been
recalled with immediate effect vide his order dated 09.1.2013. Under the
circumstances, the petitions filed on the ground of individual grievance
can be entertained and decided by this Commission as earlier was being
done.
In view of the aforementioned circumstances, the original petition
bearing No.7A(195)/12-L is restored and same be relisted for 06.02.2013.
Further proceedings will be recorded in the order sheet of said petition.
With these observations the instant application is disposed of. File be
consigned to the record room after due completion”.
8.
On 06.2.2013 the following order was passed by respondent
No.1:“Vide detailed separate order dated 22.01.13 the instant petition has been
restored and relisted. Petition is adjourned to 04.3.2013 for filing of the
reply to the main petition and stay application. Meanwhile proceedings in
the petition of the respondent pending adjudication before learned Punjab
Labour Court No.1 Lahore will remain stayed”.
W.P.No.4240/2013.
9.
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From the perusal of judgment of this Court, subject matter of
CPLA No.1810/2012 shows that it is a declaration regarding the
question whether the individual grievance of the employee of trans
provincial establishment could be heard and decided by the NIRC or
the Labour Court. The declaration of this Court was that the individual
grievance of an employee of trans provincial establishment will be
heard by Labour Court only and where the grievance of employee is
based on unfairLabour practice the matter will be heard by the NIRC,
the operation of judgment of this Court was suspended by the Hon’ble
Supreme Court of Pakistan.
This issue came up for hearing before the Hon’ble Supreme
Court of Pakistan in the case Maj. Gen. (Rtd) Mian Ghulam Jilani V.
The Federal Government through the Secretary, Government of
Pakistan, Interior Division, Islamabad(PLD 1975 Lahore 65)and the
Honourable Supreme Court of Pakistan held as under:“It is an admitted fact that while granting special leave to appeal, interim
relief according to the nature of each case, can be granted to the petitioner.
Sometimes the operation of the impugned order is stayed, sometimes
status quo is granted and sometimes possession of a party is protected. In
other words, some interim relief is granted to the petitioner during the
pendency of his case before the Supreme Court. It is also not denied that
after the grant of special leave to appeal if ultimately the appeal is
accepted, that interim relief merges into the final decision given by the
Court. If on the other hand, the appeal is rejected, then the interim relief
granted earlier automatically disappears. The result is that interim relief
given at the time of grant of special leave to appeal, cannot be termed as
final. It can be altered or modified later on. After careful consideration of
Article 189 of the Constitution, we are clearly of the view that none of the
conditions enumerated above is attracted or applicable to the interim
interlocutory order passed by the Supreme Court in General Abdul
Hamid’s case. This order neither decides a question of law, nor is based
W.P.No.4240/2013.
6
upon a principle of law, nor enunciates a principle of law. In this view of
the matter, this order suspending the operation of the impugned order is
not covered by Article 189 of the Constitution and consequently is not
binding on the Courts in Pakistan, except of course on the parties in that
case”.
10.
Again this issue came up for hearing before this Court in the
year 2012 in a case reported as Mst. Meeran Bibi (Ameer Bibi) and 4
others V. Manager, Zarai Taraqiati Bank Limited, Phool Nagar,
District Kasur and 2 others (2012 CLD 2029) and it was held as
under:“The impugned action of sale of mortgaged property is challenged
presently for being contrary to the rule laid down by the Full Bench of this
Court in Muhammad Umer Rathore V. Federation of Pakistan (2009 CLD
257) which has declared section 15 ibid to be unconstitutional. That is a
declaratory judgment with respect to the validity of a law and therefore, its
effect operates in rem. Learned counsel informs that the Hon’ble Supreme
Court has in one CPLA suspended the judgment of the learned Full Bench.
However, that suspensory order is claimed to have effect inter parties only
and not as a judgment in rem. Such an effect is established by the rule laid
down in Gen (Rtd) Ghulam Jilani V. The Federal Government through the
Secretary, Government of Pakistan, Interior Division, Islamabad (PLD
1975 Lahore 65)”.
11.
The issue whether stay granted by the Hon’ble Supreme Court
of Pakistan against a decision of High Court, which is judgment in
rem, suspends the operation of law or not? In Ghulam Jilani’s case
supra the Hon’ble Supreme Court of Pakistan has held as under:“Thus, the expression “law declared” implies that the point decided by the
Supreme Court is a legal one and of such general or public importance that
it will occupy the place of law for the land: It will be the final decision of
the Court on that particular point given after hearing the parties concerned.
In other words it will be final adjudication of that particular point and so
far as that point is concerned, nothing should remain pending before the
Supreme Court after the declaration of that law”.
W.P.No.4240/2013.
12.
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Under Article 189 of the Constitution of Islamic Republic of
Pakistan 1973 the condition necessary for making decision of
Supreme Court binding on all Courts and authorities has been defined
in the following judgment is as under:13.
In a case reported as Yousaf A. Mitha and 3 others V. Aboo
Baker and 2 others (PLD 1980 Karachi 492) the Sindh High Court
has held as under:“In the other case of Ghulam Gillani V. Federal Government (3) an
argument was advanced in that case by the Deputy Attorney General that
against the judgment of the Lahore High Court in General Abdul Hamid’s
case the Government had filed a petition for special leave to appeal before
the Supreme Court and that the Supreme Court while granting special
leave to appeal had also suspended the operation of the impugned order in
the meanwhile. According to the Deputy Attorney General, in that case,
the order of the Supreme Court suspending the operation of the impugned
order meanwhile was binding upon Lahore High Court under Article 189
of the Constitution as it amounted to a “law declared” by that Court. The
Division Bench of the Lahore High Court however observed as follows:“Thus, the expression “law declared” implies that the point decided
by the Supreme Court is a legal one and of such general or public
importance that it will occupy the place of law for the land. It will
be the final decision of the Court on that particular point given
after hearing the parties concerned. In other words it will be final
adjudication of that particular point and so far as that point is
concerned, nothing should remain pending before the Supreme
Court after the declaration of that law”
15.
I am, therefore, of the view that even if stay has been granted by
the Supreme Court, unless the D.B decision of this Court (reported in PLD
1975 Kar. 944) is set-aside by the Supreme Court, the law laid down
therein is binding on me apart from the fact that the stay granted will apply
inter parties in that matter only”.
14.
This issue again came up for hearing before the Sindh High
Court and the learned Division Bench of Sindh High Court in a case
W.P.No.4240/2013.
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reported as Collector of Sales Tax and Federal Excise V. Messrs
Wyeth Pakistan Limited (2009 YLR 2096) held as under:“6.
We have examined the judgments relied on by the learned counsel
for the respondents wherein it has been held by the Lahore High Court and
by at least two judgments of this Court that even if leave to appeal is
granted against a judgment on a particular point and even if, the impugned
order of the High Court is also suspended, the leave granting judgment of
the Honourable Supreme Court does not decide a point of law and under
Article 189 only such judgments of the Honourable Supreme Court are
binding, which decides a question of law or enunciates a principle of law.
This same point has been the subject matter of the judgment relied on by
the learned counsel for applicant.
9.
From a perusal of the above two extracts it is clear that even in
these judgments it has been held that leave granted order does not
constitute an order which has a binding effect under Article 189 of the
Constitution. The learned counsel, for the applicant wants us to read these
extracts in the manner that only a leave granting order without a
suspension of the order, which has been relied upon does not have a
binding effect but if the order is suspended it has a binding effect”.
15.
The Hon’ble Supreme Court of Pakistan in a case reported as
Justice Khurshid Anwar Bhinder and others V. Federation of Pakistan
and another (PLD 2010 Supreme Court 483) held as under:“In the light of these precedents, there remains no doubt what so ever as to
the exact meaning of Article 193 of the constitution viz. that none other
than the Chief Justice of Pakistan and not even an acting Chief Justice of
Pakistan, who is a constitutional functionary, can be the consultee in terms
of the aforesaid constitutional provision. It therefore follows (consistent
with established precedent) that the persons comprised in the second
category mentioned above were not judges of the High Courts regardless
of the fact that they purported to occupy such office. In the circumstances,
they are not in any doubt that they do not possess locus standi to file
C.MAs. or review petitions, the sole object of which is to seek an order
that they were validly appointed as judges and they are entitled to hold
such office.
We have considered this argument advanced by the learned
counsel but find little force to commend it. Firstly, it is to be noted that
W.P.No.4240/2013.
9
removal of the petitioners from the office being occupied by them was a
direct consequence of the finding that the actions of General (Rtd.) Pervez
Musharraf taken on 03.11.2007 were void ab-initio and secondly that the
notifications of those petitioners who were appointed judges of the High
Courts between 03.11.2007 and 23.3.2009 had not been issued after
“consultation” with the Chief Justice of Pakistan and mandated by Article
193 of the Constitution. These finding enunciate a principle of law and are
based on the interpretation of the relevant provisions in part VII of the
Constitution including Article 193, supra relating to the judicature. The
same are binding in view of the provisions as envisaged in Article 189 of
the constitution which, inter alia, provide that any decision of the Supreme
Court shall, to the extent that it decides a question of law or is based upon
or enunciates a principle of law shall be binding on all other Courts in
Pakistan”.
16.
The dictums laid down by the Hon’ble Supreme Court of
Pakistan show that “judgment in rem is a different from the judgment
in personam”. A judgment in rem is a judgment against a thing as
contradistinguished from a judgment against a person or a judgment
whereby a status is determined. A judgment in rem is an adjudication
pronounced upon the status of some particular subject-matter by a
tribunal/court having competent authority for that purpose. It differs
from a judgment in personam as this judgment is in form as well as
substance between the parties claiming the right, and that it is so inter
parties appears by the record itself. A judgment in rem is founded on a
proceeding instituted, not against the person as such, but against or
upon the thing or subject matter itself whose state or condition is to be
determined. It is a proceeding to determine the state or condition of
the thing itself, and the judgment is solemn declaration of the status of
the thing, and it ipso facto renders it what it declares it to be.
W.P.No.4240/2013.
17.
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The above judgment of this Court which is definitely judgment
in rem will show that on the basis of suspension order of Honourable
Supreme Court of Pakistan the respondent No.1 did not become
entitled to pass the impugned order dated 22.1.2013 and 06.2.2013 as
the judgment of this court will remain in field and binding unless set
aside or modified by the Honourable Supreme Court finally.
18.
The upshot of the above discussions that both the orders dated
22.1.2013 and 6.2.2013 of respondent NIRC are declared without
lawful authority. Both the petitions are allowed with costs.
(Muhammad Khalid Mehmood Khan)
Judge
Announced in open Court on this 24th day of January-2014.
(Muhammad Khalid Mehmood Khan)
Judge
Imran/*
*Approved for reporting.*

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