2014 P L C 288

[Lahore High Court]

Before Muhammad Khalid Mehmood Khan, J

EJAZ RASOOL

Versus

MEMBER NATIONAL INDUSTRIAL RELATIONS COMMISSION

and 5 others

Writ Petitions Nos.4240 and 2683 of 2013, decided on 24th January, 2014.

(a) Industrial Relations Act (X of 2012)---

----Ss. 33 & 57(2)(b)---Punjab Industrial Relations Act (XIX of 2010), S.33---

Constitution of Pakistan, Arts.199 & 189---Constitutional petition---Individual
grievance of employee/workman---Trans-provincial establishment---Exclusive
jurisdiction of Labour Court---Suspension of judgment by Supreme Court---Judgment
in rem and personam---Effect--- Petitioner/workman of trans-provincial establishment
challenged his termination order before Labour Court---On the application of
respondent/trans-provincial establishment (employer), Member of National Industrial
Relations Commission (NIRC) stayed the proceedings pending before Labour
Court---In another case, the High Court declared that in the matters of individual
grievances/disputes between employee/workman and trans-provincial
establishment/employer the Labour Court had exclusive jurisdiction and National
Industrial Relations Commission (NIRC) could not interfere in such like matters---
Judgment of High Court declaring exclusive jurisdiction of Labour Court over cases
pertaining to individual grievances of workman working in trans-provincial
establishment was challenged before Supreme Court and was suspended---Keeping in
view the judgment of High Court, the National Industrial Relations Commission
(NIRC) initially recalled its injunctive order but after the suspension of judgment by
Supreme Court, the matter again proceeded---Contention of the petitioner/workman
was that judgment of High Court was in rem, therefore the National Industrial
Relations Commission (NIRC) could not proceed in the matter, unless the matter
would not decided finally by the Supreme Court---Validity---Judgment in rem was
different from the judgment in personam---Judgment in rem was a judgment against a
thing as contra-distinguished from a judgment against a person or a judgment
whereby a status was determined---Judgment in rem was an adjudication pronounced
upon the status of some particular subject matter by a tribunal/court having competent
authority for that purpose---Judgment in rem differed from a judgment in personam as
the later judgment was in form as well as substance between the parties claiming the
right, and that it was so inter parties appeared by the record itself---Judgment in rem
was 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 was to be
determined---Judgment in rem was a solemn declaration of the status of the thing, and
it ipos facto rendered it what it declared it to be---Earlier judgment of High Court, in
the present case, was judgment in rem, therefore on the basis of suspension order of
Supreme Court, the National Industrial Relations Commission (NIRC) was not
entitled to pass the impugned order---Judgment passed by the High Court would
remain in the filed and binding unless set aside or modified by the Supreme Court
finally---Impugned orders were set aside---Constitutional petition was allowed.

Maj. Gen. (Rtd.) Mian Ghulam Jilani v. The Federal Government through the
Secretary, Government of Pakistan, Interior Division, Islamabad PLD 1975 Lah. 65;
Mst. Meeran Bibi (Ameer Bibi) and 4 others v. Manager, Zarai Taraqiati Bank
Limited, Phool Nagar, District Kasur and 2 others 2012 CLD 2029; Yousaf A. Mitha
and 3 others v. Aboo Baker and 2 others PLD 1980 Kar. 492; Collector of Sales Tax
and Federal Excise v. Messrs Wyeth Pakistan Limited 2009 YLR 2096 and Justice
Khurshid Anwar Bhinder and others v. Federation of Pakistan and another PLD 2010
SC 483 rel.

(b) Judgment---

----"Judgment in rem" and "judgment in personam:---Distinction.

M. Irfan Khan Ghazanavi for Petitioner.

Mirza Aamer Baig for Respondents.

Date of hearing: 19th November, 2013.

JUDGMENT

MUHAMMAD KHALID MEHMOOD KHAN, J.--- Through this single

judgment I propose to decide Writ Petitions Nos.4240 of 2013 and 2683 of 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 of

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.

Para No.35: 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 orders till final disposal of their grievance
petition. The respondent PTCL challenged the order dated 17-5-2011 by way of
Revision Petition No.LHR 306 of 2011, 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 of 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 petitions within a period of 15 days. The petitioners grievance petitions
were 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 of 2012 on 26-11-2012, the
petitioners 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 of 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 7-1-2013 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 the present
constitutional petitions, the petitioners have assailed the order dated 6-2-2012.

4. Respondents Nos.3 to 6 filed their written statement and raised the objection that
the judgment passed in Writ Petition No.22454 of 2012 dated 26-11-2012 has been
suspended by the Hon'ble Supreme Court of Pakistan in C.P.L.A. No.1810 of 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 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 7-1-2013 of the Hon'ble Supreme Court of Pakistan passed
in C.P.L.A. No.1810 of 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 7-1-2013 of Honourable Supreme Court of Pakistan in

Civil Petition No.1810 of 2012 operation of judgment dated 26-11-2012 of the
honourable Lahore High Court, Lahore passed Writ Petition No.22454 of 2012 has
been suspended and administrative order passed by honourable Chairman of this
Commission dated 4-12-2012 has been recalled with immediate effect vide his order
dated 9-1-2013. 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 6-2-2013. 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 6-2-2013 the following order was passed by respondent

No. 1:---

"Vide detailed separate order dated 22-1-2013 the instant petition has been restored
and relisted. Petition is adjourned to 4-3-2013 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."
9. From the perusal of judgment of this Court, subject matter of C.P.L.A. No.1810 of
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 unfair Labour
practice the matter will be heard by the N1RC, 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 l89 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 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 patties 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 dectaralory 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 C.P.L.A. 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."

12. 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 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 others (PLD 2010 Supreme
Court 483) held as under:---

"In the light of these precedents, there remains no doubt what so ever as 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.M.As. 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 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 3-11-2007 were void ab-initio and
secondly that the notifications of those petitioners who were appointed judges of the
High Courts between 3-11-2007 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

17. 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 6-2-2013 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 discussion is 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.

JJK/E-1/L Petitions accepted.