Summary: Employees' Old-Age Benefits Act (XIV of 1976)--- ----S.22(1)(b) & Sched.---Constitution of Pakistan, Art.199---Constitutional petition---Monthly pension---Length of service---Rounding off---Contributions towards Employees Old-Age Benefits Institution (EOBI) Funds---Complaint and review for pensionary benefits were dismissed by adjudicating authority for being short of the required length of service of 15 years---Held, that rounding off is in-built in the calculation of old age pension as provided for in the Schedule, meaning thereby that where service of an employee is more than 14.5 years he/she shall automatically become entitled to old age pension---Stipulation of rounding off contained in the Schedule to the Employees' Old-Age Benefits Act, 1976 ('the Act') was not at all considered in the orders, which is explanatory in character and must be read as the same expresses a clear intention that the length of service provided in proviso (b) to S.22(1) of Act is to be construed in conjunction with and subject to the Schedule, and the length of service contained in the proviso in question is controlled by the Explanation contained in the Schedule---Strict adherence to the text of proviso (b) to S.22(1) of the Act requiring 15 years of service as a compulsory condition would destroy and make the Explanation redundant contained in the Schedule---Such a narrow construction is not permissible as the Act is required to be construed as a whole---Proviso cannot nullify the primary objective of the main provision, meaning thereby that proviso cannot be allowed to operate in conflict with what is expressed in the main provision---Being a beneficial statute, the Act is required to be construed in the perspective and the purpose for which it was enacted---Interpretation of various provisions ought to be carried out in a manner that advances the objective of the Act and in favour of the employees especially so when the Schedule itself is quite explicit in granting benefit to such employees, who have completed more than six months of service for it to be treated as one full year---Constitutional petition was allowed accordingly with a direction to respondents/Department to pay old age pension to the petitioners. Pakistan Match Industries (Pvt.) Limited and others v. Assistant Collector, Sales Tax and Central Excise Mardan and others 2019 SCMR 906 and Muhammad Anwar Kurd v. State 2011 SCMR 1560 rel. (b) Interpretation of statutes--- ----Circular issued under an Act---Interpretation---Circular, which is in the form of an administrative direction cannot offend the provisions of and Act which are unambiguous. Hassan Latif Ch. for Petitioner. Sheraz Zaka, Assistant Attorney General. Shan Saeed Ghuman for Respondent/EOBI.

Summary: (a) Industrial Relations Act (X of 2012)--- ----S.33---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O. 15---Redressal of individual grievances---Dismissal from service---Petitioner while working as Cashier with the respondent-Bank was dismissed from service for a minor procedural error i.e. incorrectly dating a document, whereafter, he challenged his dismissal through various legal avenues and ultimately reached the National Industrial Relations Commission (NIRC) in view of "Mubeen-us-Salam" case (PLD 2006 SC 602)---Single Bench of NIRC initially ruled in favor of the petitioner, however, the Full Bench of NIRC overturned that decision on account of time barred grievance and failure to serve grievance notice---Validity---Pursuant to Para. 109(c) of the "Mubeen-us-Salam" case (PLD 2006 SC 602), cases or proceedings not safeguarded or encompassed by the judgment were deemed to have abated---Aggrieved party should seek recourse to the competent forums for the redressal of their grievances within a stipulated period of 90 days, and the statutory limitation imposed by the respective laws shall not be operative against them until the expiration of the aforementioned period---Paragraph 109(e) articulated that the Service Tribunal should adjudicate pending cases under S. 2-A of the Service Tribunals Act, 1973, in light of the preceding observations, however, if any of the cases fall within the purview of clause 'c' (ibid), a grace period of 90 days should be accorded to the aggrieved party to approach the competent forum for the redressal of its grievance, thus, the Federal Service Tribunal abated the appeal of the petitioner vide order dated 14.5.2010, advising the petitioner to seek a remedy before the appropriate forum for redressal of his grievance, whereafter, the petitioner filed the Grievance Application before Labour Court, on 15.06.2010, afresh under the provision of the Industrial Relations Ordinance (IRO), 2002, thereby falling within the stipulated 90-days' period---Hence, the findings of the Full Bench of the N.I.R.C regarding counting the period were erroneous and constituted a misreading of the judgment of the Supreme Court of Pakistan---Petitioner erroneously addressed his departmental appeal to the President of the respondent-Bank, however, despite the same being addressed to the President, it was entertained and adjudicated upon on its merits by the Vice President, who did not stated that it was erroneously addressed to the President, thus, the departmental appeal of the petitioner could be construed as a grievance notice---Respondent-bank had not furnished any substantive evidence to suggest that the mistake committed by the petitioner was intentional or premeditated for illicit gains---Such errors in routine work were plausible due to the exigencies of work and for such a minor infraction, the petitioner could not be subjected to the severe penalty of dismissal from service---Respondent bank had not incurred any financial loss---Constitutional petition was allowed, in circumstances. Mubeen-us-Salam v. Federation of Pakistan and others PLD 2006 SC 602 and Nadeem Ahmed Qureshi v. Habib Bank Limited 2009 PLC 160 rel. 2005 SCMR 1610; 2003 PLC (C.S) 1247; 2007 PLC 381; 1980 PLC 981; 2002 SCMR 943; 1976 SCMR 74 and 1984 PLC 181 distinguished. (b) Constitution of Pakistan--- ----Art.199(1)(a)(ii)---Supervisory jurisdiction of High Court---Writ of certiorari---Scope---Certiorari is a remedy available to annul a decision on the grounds of a legal error---It can also be invoked to rectify jurisdictional errors when a lower court or a tribunal acts beyond its jurisdiction, fails to exercise its jurisdiction, or where the court or a tribunal acts unlawfully in the exercise of its undisputed jurisdiction and adjudicates a matter in contravention of the principles of natural justice---High Court in issuing a writ of certiorari, operates in the capacity of supervisory jurisdiction. Government of Pakistan through the Director-General, Ministry of Interior, Islamabad, and others v. Farheen Rashid, 2011 SCMR 1 rel. Sohail Ahmed Khoso for Petitioner. Shaukat Ali Chaudhry for Respondents Nos.2 to 4. Dareshani Ali Haider 'Ada', Deputy Attorney General for Respondent No.1. Date of hearing: 8th May, 2024.

Summary: Sindh Industrial Relations Act (XXIX of 2013)--- ----S.34---Termination from service---Grievance petition before the Labour Court---Non-service of grievance notice on the employer before filing of grievance petition---Effect---Such an omission would be fatal to the competency of grievance petition---The petitioner establishment (employer) through the present Constitutional petition challenged the judgment passed by the Labour Appellate Tribunal, whereby, respondent No.1 (employee) was reinstated into the petitioner establishment with back benefits after setting aside the Labour Court's order---Petitioner establishment argued that the Appellate Tribunal overlooked undisputed facts and legal provisions, wrongly concluding that respondent No.1 was a permanent worker, despite no convincing evidence and non-service of grievance notice as required under S. 34 of the Sindh Industrial Relations Act, 2013 (SIRA)---Held: It was undisputed (admitted in cross-examination by respondent No.1) that the grievance notice was not served at the address of the petitioner establishment (employer) but at the premises of CEO of the petitioner establishment, in spite of the fact that respondent No.1 was doing duty at the official premises of the petitioner establishment---This was fatal to the case of respondent Employee---Impugned judgment of the Labour Appellate Tribunal was set aside because grievance notice before the Labour Court was incompetently filed and this basic aspect of the case was overlooked by the Labour Appellate Court---Constitutional petition was disposed of, in circumstances. Khushal Khan v. Muslim Commercial Bank Limited 2002 SCMR 943 rel. Sufiyan Zaman for Petitioner. S. Inayat Hussain Shah Bukhari for Respondent No.1. Nemo. for Respondent No.2. Dates of hearing: 17th and 24th February, 2025.

Summary: Specific Relief Act (I of 1877)--- ----S. 42---Civil Procedure Code (V of 1908), S. 100 & O.VI, R.I---Contract employee of Pakistan Telecommunication Corporation Limited---Absence from duty---Termination from service---Non-statutory rules of service---Claim of rights and privileges of civil servants---Legality---Appellant instituted a suit for declaration and recovery of damages on account of his termination without any notice---Respondents raised objection as to maintainability of suit before civil court being a subject of labour laws and the controversy relating to service matter---Validity---Appellant admitted that he was given notices/letters to explain his position; that he remained absent from duty without any intimation and failed to produce any medical prescription or any other documents showing that he remained admitted in the hospital---Appellant did not mention in his plaint that he met with an accident and remained admitted in hospital---Evidence beyond pleadings can neither be produced nor relied upon---In absence of any statutory rules the employee cannot claim the rights and privileges as are available to "Civil Servants" rather the rule of "master and servant" would be attracted which is to the effect that unwilling employer cannot be forced to accept the services of an employees who has been removed from service---No declaration can be issued as to the subsistence of a contract that by its own terms and conditions is terminable at the option of the employer---In absence of any statutory provisions protecting a servant, it is not possible under the law to grant him a decree against an unwilling master to the effect that he is still his servant---If the employee feels that the order of removal was not just or fair or suffered from any mala fide, the remedy will be to sue for damages and not for declaration for subsistence of service as no declaration can be issued as to the subsistence of a contract that by its own terms and conditions is terminable at the option of employer---Appellant was an employee of "Pakistan Telecommunication Corporation Limited", thus, the relationship between him and the "Corporation" was to be regulated entirely by law of "Master and Servant" and the Constitutional safeguards available to the generality of civil servants would not be available to him---Matter of appellant's reinstatement after cancellation of his termination fell within the domain of Labour fora and not in the Civil Courts---Trial Court had rightly held that the Civil Court had no jurisdiction to adjudicate upon the matter---Appellant failed to utter a single word describing the details of loss suffered by him due to his termination order such as fee of advocate or other charges for facing the litigation, medical certificate to prove mental agony as well as damages due to loss of his reputation---Regular Second Appeal was dismissed, in circumstances. Zabie Ullah Nagra for Appellant. Umar Abdullah for Respondents. Date of hearing: 7th October, 2024.

Summary: Sindh Terms of Employment (Standing Orders) Act, 2015 (XI of 2016)--- ----Ss. 2(1)(b) & 16(3)---Re-instatement in service---Petitioner / employer was aggrieved of order passed by Sindh Labour Appellate Tribunal reinstating respondents / employees in service as they had been serving as permanent employees in the roles of gardeners, watchmen, cleaners, and sweepers in the establishment of petitioner---Validity---Labour Appellate Tribunal meticulously examined the issues and had rendered affirmative findings after having thoroughly evaluated the evidence presented---Tribunal considered all facets of the case and subsequently delivered an explanatory judgment---High Court did not find any basis for re-evaluating the evidence and upheld the judgment passed by Labour Appellate Tribunal, as there were no traces of illegality, infirmity, or substantial irregularity---Constitutional petition was dismissed in circumstances. 1992 SCMR 505; 1992 SCMR 227 and PLD 1978 Kar. 649 ref. Khalid Mehmood v. State Life Insurance Corporation of Pakistan et al. 2018 SCMR 376 and The Chairman Agriculture Policy Institute, Ministry of National Food Security and Research, Government of Pakistan, Islamabad and another v. Zulqarnain Ali and another 2022 SCMR 636 rel. Muhammad Hamayoun for Petitioner. Jamshed Ahmed Faiz for Respondents Nos.1 to 17. Ahmed Ali Shahani, Assistant Advocate General for Respondent No.18. Date of hearing: 26th March, 2024.

Summary: Sindh Payment of Wages Act, 2015 (VI of 2017)--- ----S. 2(d)---Pakistan National Shipping Corporation (Service) Regulations, 1984, Regln. 1(3)---Civil Procedure Code (V of 1908), S.100---Second appeal---Damages for loss of job and salaries etc.---Contract employee---Suit and appeal filed by respondent / plaintiff were decreed in his favour by two Courts below---Plea raised by appellant / defendant was that the suit was not maintainable---Validity---Respondent / plaintiff, under S. 2(d) of Sindh Payment of Wages Act, 2015, could not have approached the Authority and had correctly invoked jurisdiction of Civil Court---Lower Appellate Court and Trial Court did not examine terms of contract between respective parties and had placed undue reliance on minutes of meeting of Board of directors---Provision of Regln. 1(3) of Pakistan National Shipping Corporation (Service) Regulations, 1984, had restricted its applicability to contractual employees---High Court set aside judgments and decrees passed by two Courts below---Second appeal was allowed in circumstances. National General Insurance Company Ltd. through General Manager v. Presiding Officer, Punjab Labour Court No.6 Rawalpindi and others 2004 SCMR 683; Muslim Commercial Bank Limited v. Rizwan Ali Khan and others 2024 SCMR 360; Habib Bank Limited v. Gulzar Khan and others 2019 SCMR 946; Dilshad Khan Lodhi v. Allied Bank of Pakistan and others 2008 SCMR 1530; Sheikh Akhtar Aziz v. Mst. Shabnam Begum and others 2019 SCMR 524 and Sohail and others v. Pakistan National Shipping Corporation C.P. D-830 of 2014 ref. Abdul Ghaffar for Appellants. Muhammad Abu Bakar Khalil for Respondent along with Muhammad Absam Khalil and Nency Dean. Ahmed Khan Khaskheli, A.A.G. Dates of hearing: 6th and 20th March, 2025.

Summary: Employees' Old-Age Benefits Act (XIV of 1976)--- ----S. 22B(2)---Survivor's Pension---Second wife/widow of the deceased employee/insured person claimed survivor's pension after the death of first widow, who was receiving such pension---Employees Old-Age Institution/respondent denied the claim of the second wife on the ground that her Nikah with the deceased employee was solemnized after the age of 60 years, thus, she was not entitled to survivors' pension---Validity---Section 22B(2) of the Employees' Old-Age Benefits, 1976, (Act) clearly exhibits the intention and wisdom of the legislature by putting a condition that only such spouse will be entitled to survivor's pension, who had married the deceased pensioner/employee before he attained the minimum age prescribed for the old age pension---Law had not put any clog on the right of the employee to contract multiple marriages, as per his personal law, but only regulated the award of the pension to surviving spouse, by stipulating the conditions of entitlement---Pakistan is not an economically developed and/or advanced country rather a developing country with limited resources---While the legislature had provided for the survivor's benefit to a widow but had placed a curtailment on such benefit, that same should not be permissible to a widow, who married a deceased after a particular age prescribed in this regard, which was intended to save the respondent-EOBI from an unnecessary burden in view of the limited resources for provision of survivor's benefit---Even though pension is not a bounty from the employer but across the globe, different States have devised and set out mechanisms and regulatory framework by way of imposing limitations regarding the time when the marriage takes place, length of the marriage, age differences to avoid the obvious unfair exploitation of the scheme by marrying on one's death bed or after a particular prescribed age, that puts burden on limited financial resources of the institution---Plain language used by the legislature in S. 22B (2) of the Act left no room for further exercise by High Court by resort to any other artillery of interpretation except principle of literal interpretation---Section 22B(2) of the Act does not run against such standards set out by the International Labour Organization and laws of other jurisdiction---Petitioner remained silent since the death of deceased employee and had acquiesced to the receipt of pension exclusively by the first wife, thus, the petitioner was estopped from claiming the survivor's pension after the death of first wife---High Court found no illegality in the order of rejection passed by respondent/EOBI---Constitution petition was dismissed, in circumstances. Haider Mahmood Mirza for Petitioner. Tariq Bilal along with Sarfraz Ahmad, Regional Head, EOBI for Respondents. Date of hearing: 12th November, 2024.

Summary: (a) Industrial Relations Ordinance (XCI of 2002)--- ----Ss.2(xxx) & 46---Service Tribunals Act (LXX of 1973), Ss.2(a) & 3(2)---Industrial and Commercial Employment (Standing Orders) Ordinance (V of 1968), S. 3(f)---Civil Procedure Code (V of 1908), O.VI, R.11---Jurisdiction of Labour Court and Service Tribunal---Scope---Regularization---Daily wage employees of Pakistan Railways---Industrial establishment, status of---Contention of the petitioners was that respondents did not fall within the definition of workmen, therefore, being civil servants they should have approached the Service Tribunal---Validity---Daily wage employees of Pakistan Railways, not employed in a managerial or administrative capacity, fall within the definition of "workman" under S. 2(xxx) of the Industrial Relations Ordinance, 2002 (IRO, 2002), and were, thus, entitled to approach the Labour Court for redressal of their grievances, including regularization of service---Pakistan Railways, being defined as a "railway" under S.3(f) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, constitutes an "industrial establishment," further subjecting its daily wage/work charge employees to the jurisdiction of the Labour Court---Petitioners filed application under O.VII, R. 11, C.P.C., seeking rejection of grievance petition filed by the respondents on the point of jurisdiction, which was dismissed and the said order attained finality having not been challenged by the petitioners---Objection to the jurisdiction of the Labour Court, if not challenged at an earlier stage and allowed to attain finality, cannot be raised subsequently in a writ petition---Daily wage employees of a statutory corporation like Pakistan Railways do not automatically attain the status of "civil servants" within the meaning of the Civil Servants Act, 1973, in the absence of a corresponding amendment, thus, the exclusive jurisdiction of the Federal Service Tribunal under S. 3(2) of the Federal Service Tribunals Act, 1973, pertaining to the terms and conditions of civil servants, did not extend to daily wage employees---Objection raised by the petitioner as to jurisdiction of the Labour Court was spurned. Divisional Superintendent Pakistan Railways, Rawalpindi and others v. Syed Usman Ali and others 2021 SCMR 1008; Pakistan Railways through Chairman, Islamabad and another v. Sajid Hussain and others 2020 SCMR 1664; Chairman Pakistan Railways and others v. Arif Hussain and others 2008 PLC (C.S.) 240; Javed Iqbal and 20 others v. General Manager, Pakistan Railways, Headquarter Office Lahore and 2 others 2006 PLC 604 and Muhammad Naeem and 19 others v. Pakistan International Airlines Corporation through Chairman and 7 others 2006 PLC 374 ref. General Manager, Optical Fibre System Telecom Company Ltd. PTC Headquarter, Islamabad and 2 others v. Abdul Rasheed Khan, Member NIRC Islamabad and another 2000 PLC (C.S.) 180 rel. (b) Industrial and Commercial Employment (Standing Orders) Ordinance (V of 1968)--- ----S.O. 12---Constitution of Pakistan, Art. 199---Concurrent findings of facts---Interference by High Court---Scope---Regularization---Daily wage employees of Pakistan Railways---Order of termination in post remand proceedings during the operation/subsistence of injunctive order of Labour Court and High Court---Legality---Regularizations of other daily wage employees---Discrimination---Mala fide---Alteration in record---Scope---Respondents daily wage employees claimed their regularization against permanent posts---Plea of the petitioners was that since the services of the respondents had been terminated, therefore, they could not be regularized---Validity---Termination of service of daily wage employees, who had attained the status of permanent workmen after the expiry of the requisite period, without adhering to the procedure laid down under S.O. 12 of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, was illegal and could not impede their claim for regularization---Evidence of mala fide on the part of the employer, such as alteration of attendance records to show unauthorized absence or discriminatory treatment in regularizing similarly situated employees, could be taken into consideration by the courts while deciding the grievance petition of the affected employees---Termination letter of respondents showed that the same related to promotion of another employee, however, on the margin of the said document a note as to termination of respondent had been given---Petitioners were not able to produce termination order of one of the respondents, which cast serious doubts about the conduct of the petitioners---Any action taken by an employer against an employee during the subsistence of an interim injunction or a status quo order issued by a court of competent jurisdiction is subject to scrutiny by the said court and cannot be used to prejudice the employee's rights in the ongoing proceedings---Concurrent findings of facts recorded by the courts below cannot be upset in Constitutional petition---Constitutional petition was dismissed, in circumstances. Pakistan Telecommunication Company Ltd. Through General Manager and another v. Din Muhammad and others 2019 PLC 30 and Farhat Jabeen v. Muhammad Safdar and others 2011 SCMR 1073 rel. Umer Sharif for Petitioners. Tanveer Ahmad Ghumman for Respondents Nos.1 and 2.

Summary: (a) Punjab Industrial Relations Act (XIX of 2010)--- ----Ss.2(xxxi) & 33---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O. 15(3)(a) & (h)---Grievance petition---Maintainability---"Workman"---Determination of---Procedure---Respondent/employee while working as Operator with petitioner-company was proceeded under the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (Ordinance) on the allegation of misconduct---Duties, being performed by a person, are determining factor to adjudge as to whether he/she is a workman or not---Prosecution witnesses deposed in their examination in-chief that respondent had been performing duties of manual nature, thus, the plea of petitioner-company that the accused employee did not fall within the category of a workman, being contrary to the record, could not be given any weightage---Disciplinary proceedings were initiated against the respondent/employee for alleged violation of Standing Order No.15(3)(a) & (h) of the Ordinance, which starts with the words that a workman may be reprimanded or fined meaning thereby that the same is meant for a worker---Respondent filed grievance petition under S.33 of Punjab Industrial Relations Act, 2010 (Act) and the preamble thereof shows that the same has inter alia been enacted to regulate relations between employers and workmen---From inception of disciplinary proceedings upto issuance of dismissal letter of respondent, the petitioner-company itself had been relying upon different provisions of the Ordinance----Punishments provided under Standing Order 15 of the Ordinance are only meant for a workman and if the same was inapplicable to respondent, the entire proceedings conducted against him would stand nullified---Employer could not be allowed to blow hot and cold in the same breath inasmuch as once the status of a person had been admitted as workman, the same could not be allowed to be retracted without any change in the nature of his work---Constitutional petition was dismissed, in circumstances. Muslim Commercial Bank Ltd. through General Attorney and another v. Amir Hussain and another 1996 SCMR 464; Crescent Jute Products Ltd. Jaranwala v. Muhammad Yaqub and others PLD 1978 SC 207; The Postmaster General, Sindh Province, Karachi and others v. Syed Farhan 2022 SCMR 1154; Khalid Mehmood v. State Life Insurance Corporation of Pakistan and others 2018 SCMR 376; Bashir Ahmed v. Government of Sindh through Secretary, Home Department and 3 others 2003 PLC (C.S.) 1249 and Muhammad Naeem v. General Tyre and Rubber Company of Pakistan and another 2020 PLC 108 ref. Messrs Pak Telecom Mobile Limited v. Muhammad Atif Bilal and 2 others 2024 SCMR 719; National Bank of Pakistan and another v. Anwar Shah and others 2015 SCMR 434; Muslim Commercial Bank Ltd. and others v. Muhammad Shahid Mumtaz and another 2011 SCMR 1475; National Bank of Pakistan v. Punjab Labour Court No.5, Faisalabad and 2 others 1993 SCMR 672; General Manager, Hotel Intercontinental, Lahore and another v. Bashir A. Malik and others PLD 1986 SC 103; Ejaz Ahmad Butt v. Habib Bank Ltd. and others 1986 SCMR 1262; United Bank Limited and 5 others v. Raja Ghulam Hussain and 4 others 1999 PLC 106 and Pakistan Tobacco Co. Ltd. v. Channa Khan and others 1980 PLC 981 distinguished. (b) Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)--- ----S.O. 15(3)---Acts and omissions constituting misconduct---Determination---Mere attempt to play a leading role amongst the workers, while discussing issues, could not be termed as any of the omissions/acts as enumerated in S.O 15(3) of the Ordinance, and sarcastically laughing also did not constitute an offence amounting to misconduct---Production Engineer of petitioner-company, who interacted with respondent and others on his first day of joining duty in the petitioner-company, could not have adjudged the conduct and output of a worker having 23 years of blotless service to his credit---Petitioner-company did not produce anything to prove the allegation of misconduct, rather witnesses did not utter a word about conduct of respondent constituting misconduct on his part---Constitutional petition was dismissed, in circumstances. (c) Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)--- ----S.O.15(3)(a) & (h)---Constitution of Pakistan, Art.199---Findings of inquiry officer---Substitution by High Court in its constitutional jurisdiction---Scope---Findings of the Inquiry Officer/Committee cannot be substituted but when the same are not based on true appraisal of the material on record the same cannot be considered sacrosanct rather in such eventuality no forum should feel shy to take care of such omission or commission. (d) Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)--- ----S.O.15---Workman---Allegation of misconduct---Quantum of punishment---Choice of competent authority to award punishment---Scope---Instead of choice of the competent authority it is requirement of law that penalty should commensurate with gravity of allegation. The Postmaster General Sindh Province, Karachi and others v. Syed Farhan 2022 SCMR 1154; Secretary to Government of the Punjab, Food Department, Lahore and another 2007 PLC (C.S.) 692 and Government of Punjab v. Shahid Mehmood Butt 2006 SCMR 443 rel. (e) Civil Procedure Code (V of 1908)--- ----S. 96 & O.XLI, R.33---Punjab Industrial Relations Act (XIX of 2010), S.33---Findings of the fora below at variance---In such eventuality preference was to be given to the verdict of the appellate forum until and unless the same was found to be perverse or arbitrary. Hakim-ud-Din through L.Rs and others v. Faiz Bakhsh and others 2007 SCMR 870 rel. (f) Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)--- ----S.O. 15(3)(a) & (h)---Constitution of Pakistan, Art.199---Discrimination---Voicing reservation against the policies of the employer company---Proceedings only against the respondent---During meeting with employer company, many other employees, along with respondent voiced reservations against the policies of the petitioner-company but initiation of proceedings against respondent alone proved that he was discriminated which approach being violative of Art.25 of the Constitution could not be approved----Constitutional petition was dismissed. Barrister Rafay Altaf for Petitioner. Ch. Imran Younas Goraya for Respondent No.2. Date of hearing: 30th September, 2024.

Summary: Elections Act (XXXIII of 2017)--- ----S. 139---Election Rules, 2017, Rr. 86, 87 & 90---Recounting of ballot papers---Principle---Petitioner / returned candidate was aggrieved of order passed by Election Tribunal directing recount of ballot papers--- Plea of respondent / candidate was that difference in number of votes shown to have casted in favour of petitioner / returned candidate as in consolidated result of poll fell within the threshold for recount contemplated under Elections Act, 2017---Validity---Plea of respondent/ candidate was well founded and there was no waiver on the part of respondent / candidate in that regard---High Court declined to interfere in order of recounting passed by Election Commission---Constitutional petition was dismissed, in circumstances. Shaukat Aziz Siddiqui v. Federation of Pakistan, Secretary Ministry of Law and Justice and another PLD 2024 SC 746, and Justice Qazi Faez Isa and others v. The President of Pakistan and others PLD 2021 SC 1 ref. Ali Gohar Khan Mahar v. Election Commission of Pakistan through Secretary and 2 others 2014 CLC 776; Civil Petitions No.1573, 1673, 1729, 1767 and 2433 of 2024 and Muhammad Raza Hayat Hiraj and others v. The Election Commission of Pakistan and others 2015 SCMR 233 rel. Khawaja Shamsul Islam for the Petitioner. Ali Tahir and Mohammad Hashim Sairani for the Respondent No. 4. Kafeel Ahmed Abbasi, Addl. A.G. Abdullah Hanjrah, Deputy Director (Law) and Sarmad Sarwar, Assistant Director (Law), ECP. Kazi Abdul Hameed Siddiqui, D.A.G. Date of hearing: 24th September, 2024. Order Yousuf Ali Sayeed, J .--- The Petitioner, being the returned candidate from NA 231-Malir Karachi (the "Constituency"), has invoked the jurisdiction of this Court under Article 199 of the Constitution, seeking to impugn the Order made by an Election Tribunal (the "Tribunal") on 31.05.2024 in Election Petition No.07 of 2024 instituted by the Respondent No.4 under Section 139 of the Election Act, 2017 (the "Act") in the matter of the general election held on 08.02.2024, whereby CMA No. 1030 of 2024 (the "Application") filed by that Respondent was allowed so as to direct the Provincial Election Commissioner Sindh to nominate an officer of the Election Commission of Pakistan (the "ECP"), not being the officer who acted as the Returning Officer (the "RO") of the Constituency, to examine and recount all ballot papers polled at four specified polling stations in accordance with the procedure set out in Rules, 86, 87 and 90 of the Election Rules, 2017 (the "Rules"), subject to certain directions, and with the result of the recount and reconsolidation to be submitted to the Registrar of the Tribunal within three weeks under cover of a report, whereafter any candidate desiring to file objections thereto was left at liberty do so within 7 days. 2. Proceeding with his submissions learned counsel appearing on behalf of the Petitioner, contended that the impugned Order was bad in law as it had been made without adhering to the principle of natural justice enshrined in the maxim audi alteram partem, in as much as it was argued that the Petitioner had not been afforded a proper opportunity of hearing prior to the decision of the underlying application. In that regard, he submitted that the Application had not been filed along with the Election Petition at the outset, but had been preferred subsequently and came to allowed through the impugned Order without the Petitioner being properly put on notice thereof or provided a copy or any opportunity to file his reply/objections. He placed reliance in that regard on the judgments of the Supreme Court in the cases reported as Shaukat Aziz Siddiqui v. Federation of Pakistan, Secretary Ministry of Law and Justice and another PLD 2024 Supreme Court 746, and Justice Qazi Faez Isa and others v. The President of Pakistan and others PLD 2021 Supreme Court 1. 3. Learned counsel also argued that the Application was even otherwise not maintainable and had been wrongly entertained, as Rule 139(7) has been misconstrued in the impugned Order to be a provision enabling the Tribunal to order a recount but was is actually a barring provision which clearly mandated that if the election petitioner had failed to seek a recount of votes before consolidation, then such application for recount of votes could not be entertained. It was submitted that an application dated 09.02.2024 had been submitted by the Respondent No 4 before the Provincial Election Commissioner and not the R.O, which was the mandatory requirement under the law, and had also been submitted after the process of consolidation had been completed, hence, was dismissed as not maintainable. It was submitted that under such circumstances the Tribunal had erroneously exercised a power that was not vested in it. 4. Additionally, it was contended that the right to seek a recount had even otherwise been waived by the Respondent No.4 while filing Constitutional Petition No.733/2024 before this Court prior to the Election Petition so as to challenge an order of the RO dated 10.02.2024 whereby an application for recount had been dismissed, in as much as it had been stated in the Memo. presented in the Constitutional Petition that the counting of votes was not being impugned at that stage. He prayed that the matter ought to be remanded for decision afresh by the Tribunal after granting an opportunity of hearing and filing of a reply/objections. 5. Conversely, learned counsel appearing on behalf of the Respondent No.4 argued that the impugned Order did not infringe any right so as to give rise to any cause for invoking Article 199 Petition and was even otherwise not maintainable. He placed reliance upon Section 155 of the Act while pointing out that it was analogous to Section 67(3) of the Representation of the People Act, 1976 while citing the judgment of a larger Bench of this Court in the context of the erstwhile statute in the matter reported as Ali Gohar Khan Mahar v. Election Commission of Pakistan through Secretary and 2 others 2014 CLC 776, as well as the majority judgment of the Supreme Court in Civil Petitions Nos.1573, 1673, 1729, 1767 and 2433 of 2024. 6. He submitted that the difference in the number of votes shown to have been cast in favour of the Petitioner as compared to the Respondent No. 4 in the consolidated result of the poll from the Constituency fell within the threshold for recount contemplated under Act, with the plea for recount thus being well founded and there being no waiver on the part of said Respondent in that regard even it were assumed for the sake of argument that the right to avail that statutory remedy admitted to such a measure. It was pointed out that it had even otherwise been stated for purpose of the pleadings in Constitutional Petition No.733/2024 that the count may be impugned later on, and the Order whereby the matter had been disposed of by this Court itself envisaged such recourse through the Tribunal. 7. For his part, while adopting the arguments advanced by learned counsel for the Respondent No.4, the learned DAG placed further reliance on the judgment of the Supreme Court in the matter reported as Muhammad Raza Hayat Hiraj and others v. The Election Commission of Pakistan and others 2015 SCMR 233. 8. Having heard the arguments advanced and examined the relevant statutory provisions in light of the case law cited in the matter, it merits consideration that while the judgments cited on behalf of the Petitioner regarding the principle of natural justice and the right to a fair trial have their own place, more relevantly from the standpoint of the controversy at hand it was held in the case of Ali Gohar Khan Mahar (Supra) that "25. Having considered the decisions of the Supreme Court as above, in our respectful view, the controlling authorities for present purposes are Javaid Hashmi, Ghulam Mustafa Jatoi and Muhammad Nawaz Sharif. As noted, the last two decisions were of 5-Member Benches. In both, the general rule laid down in Javaid Hashmi was affirmed. In our respectful view, that general rule must be regarded as applicable to all disputes relating to or arising out of the election process or after that process has been completed. What has been stated in Ghulam Mustafa Jatoi ought to be regarded as an exception to the general rule, and what is stated in Muhammad Nawaz Sharif ought to be regarded as a restatement of the exception. It will be recalled (see para 13 above) that in Javaid Hashmi the Supreme Court expressly observed that the High Court could not in the exercise of its jurisdiction under Article 199 "question the correctness of the decision of the Election Tribunal on any ground whatsoever upon an election petition filed to question the validity of the election" (see Javaid Hashmi at pg. 423). Quite obviously, "the decision" being referred to includes an interlocutory order of the Election Tribunal. The general rule thus clearly encompasses the matter before us, which is challenge to two interlocutory orders of the Tribunal. The only question therefore is whether, and if so to what extent, the matter comes within the scope of the exception? We have carefully considered the point. As restated in Muhammad Nawaz Sharif, for the exception to apply the order must be "patently illegal" and there should be no remedy available in law "either before or after the election process". Now, in respect of an election petition presented under section 52, there is a remedy available by way of a direct appeal to the Supreme Court under section 67(3). In Javaid Hashmi, the majority dilated at some length upon this aspect and, in our respectful view the existence of this statutory right of appeal is central to the reasoning that led the Court to lay down the general rule. The general rule is comprehensive. The exception on the other hand has been stated in narrow terms. The threshold is high: mere illegality will not do; the impugned order must be "patently" illegal. In our respectful view, if an interlocutory order of an Election Tribunal trying an election petition presented under section 52 is patently illegal, that will almost certainly furnish a ground for an appeal to the Supreme Court under section 67(3). In other words, in the present context, there will hardly ever be a situation where the remedy by way of statutory appeal will not be available and applicable. Put differently, one of the key elements for the exception to apply will not be found to exist. There will be a remedy available under law. That this remedy is not immediately available, but must await the "final" decision of the Election Tribunal is not determinative. In our respectful view, the manner in which the exception has been formulated, especially as restated in Muhammad Nawaz Sharif, precludes any such conclusion. It necessarily follows that a petition under Article 199 will not be maintainable against an interlocutory order of an Election Tribunal trying an election petition, even if such order is patently illegal. The aggrieved party will have its remedy by way of the statutory appeal under section 67, and must seek that remedy at the appropriate stage. 26. We are mindful of the fact that the foregoing conclusion may mean that an interlocutory order of an Election Tribunal must be allowed to stand and take effect, no matter how perverse or illegal it may be. That was perhaps the apprehension expressed by Nasim Hasan Shah, J. in his dissenting judgment in Javaid Hashmi. In our respectful view, the forceful and comprehensive manner in which the majority judgment stated the general rule, the repeated affirmation of that rule in subsequent Supreme Court decisions (given by larger Benches), and the care taken to narrowly circumscribe the exception carved from the general rule make clear that notwithstanding this concern and apprehension, the matter must be left for the Supreme Court itself to decide in any appeal to be preferred under section 67(3). If at all the position is otherwise, i.e., the exception is to cover a patently illegal interlocutory order of an Election Tribunal trying an election petition notwithstanding the existence of the statutory right of appeal, that is something for which guidance can only come from, and be given by, the Supreme Court itself." 9. That judgment was affirmed by the Supreme Court in the case of Muhammad Raza Hayat Hiraj (Supra), as follows: "?the interlocutory orders passed by the Election Tribunal impugned before the High Court were not liable to be set aside in its Constitutional jurisdiction as the petitioners before the Court had a remedy available to them by way of appeal under section 67 of the Act after disposal of the election petitions. The impugned judgment of the Lahore High Court dated 28-2-2014, therefore, is maintained and similar opinion of the High Court of Sindh in Ali Gohar Khan Mahar's case (supra) and of the High Court of Balochistan in Dur Muhammad Khan Nasar's case (supra) is affirmed." 10. Just as fundamentally, in terms of the Order dated 12.08.2024 made by the Supreme Court in Civil Petitions Nos.1573, 1673, 1729, 1767 and 2433 of 2024, it was held that: "29. There is yet another aspect to these Cases. The counting and the recounting of ballot papers is not a judicial or even a quasi-judicial act. It is an administrative-ministerial act. The only prerequisite to undertake it is for the Returning Officer to simply determine the percentile/numerical difference between the first two candidates, upon receipt of an application requesting recount. In these Cases it is admitted that applications seeking recount were submitted in respect of all four constituencies and that the difference in the margin of victory between the first two candidates was well within the stipulated percentile/number as prescribed in section 95(5) of the Elections Act. 30. The High Court's jurisdiction under Article 199 of the Constitution can only be invoked if a petitioner is an 'aggrieved' person. It is not understandable how anyone can be stated to be aggrieved if the ballot papers are recounted. Grievance against the administrative-ministerial act of recounting of ballot papers is also not envisaged in Article 199. If a Returning Officer does not do an honest recount or does not do the recount in accordance with the law, then the affected party has available remedies. Depending upon the particular facts of the case this could be by approaching the Commission or filing an election petition before the Election Tribunal, constituted under Article 225 of the Constitution. Thereafter, the jurisdiction of this Court can also be invoked." 11. It was in view of the foregoing that we had found the Petition to be misconceived and non-maintainable, hence had dismissed the same vide a short Order made in Court upon culmination of the hearing on 24.09.2024. MH/A-87/Sindh Petition dismissed.