2006 PLP 319 (PLC)

ALI NAWAZ A. CHANNA (CHAIRMAN).

This appeal is directed against the order of learned Senior Member, Lahore Bench, Lahore (Mr. Riazul Hassan Alvi) dated 22-7-2002 by which order he dismissed the petition/complaint of appellant Ameer Abdullah. The brief facts giving rise to the filing of the said petition/complaint and this appeal are briefly stated as under.

2. That the appellant was employee of the respondent. He claimed to be active trade unionist of a trade union and he alleged that due to his trade union activities the respondents were annoyed with him and were asking him either to give up the union or to give up his activities otherwise he will be put into trouble. He alleged in the petition that as a result of unfair labour practice on the part of the respondents he was dismissed from service and therefore, he filed complaint before the learned Member. The prayer of the petitioner in the complaint was as under: "Under the circumstances and submissions, it is therefore, most humbly prayed that the petition/complaint may very graciously be accepted and the respondents/accused may very kindly be summoned, called in question dealt with to prosecute and be punished on the clear acts of unfair labour practice as provided under section 53 of the Industrial Relations Ordinance, 1969 and as a consequential relief, the impugned dismissal order dated 7-12-1998 may very also kindly be declared to be arbitrary, excessive, unlawful void ab initio the result of the acts of unfair labour practice on the part of the employers and the service of the petitioner/complainant may very kindly be ordered to be reinstated in the establishment of the respondents with all back-benefits." The complaint was under section 22-A(9)(a), 22-B(3)(a), Sections 15 and 53 of the IRO, 1969. Upon receipt of this complaint the learned Member issued notices to the respondents for filing written comments which were filed. Then on 13-9-2000 the learned Member (Mr. Muhammad Akbar) passed the following order with the directions to the petitioner to amend his petition: "Ld. Counsel for the respective parties heard relating to maintainability of the present petition. The learned Counsel for the respondents has referred precedents reported in 2000 SCMR 826 and 1994 SCMR 2213 in order to show that the petitioner for the purposes remedy shall be 'deemed to be a civil servant under the Service Tribunal Act, 1973 and that after termination of services the petitioner shall not be covered under the definition of workman. It may be mentioned here that this petition is at initial stage and no specific or definite opinion as such can be formed as to whether under the circumstances he is barred for claiming remedy in this forum because cases involving unfair labour practice do fall within the exclusive jurisdiction of this Commission. On the other hand, the learned Counsel for petitioner conceded that this petition has not been happily worded/drafted and one is misled from the prayer so contained in the petition. Under the circumstances request is made that petitioner be allowed to amend the petition and to incorporate therein remedy to the extent of civil wrong and excluding thereby attracting of penal clauses. Saving all just exception to its maintainability under law, the petitioner allowed to amend the petition in order to determine the scope of relief which under circumstances can as such be extended to him." Accordingly the petitioner/complainant changed the whole complexion of the complaint. Materially the complaint was converted into a civil petition with the following prayer; "Under the circumstances and submissions, it is, therefore, most humbly prayed that the petition may kindly be accepted and the impugned dismissal order passed by the respondents dated 7-1Z-1998 may kindly be declared to be mala fide, arbitrary excessive, unlawful and only an outcome of the acts of unfair labour practice on the, part of the respondents and the impugned order may graciously be set aside and the petitioner may please be ordered to be reinstated to his employment with all back-benefits." Again the respondents filed comments against this petition whereafter both the parties adduced evidence. The learned Member Mr. Riazul Hassan Alvi after hearing the arguments of Advocates for the parties came to conclusion that the conversion of complaint into civil petition was illegal and that the appellant was properly terminated from service after holding proper and due inquiry against him. Being dissatisfied with the above order of the learned Member this appeal has been preferred.

3. We have heard the learned Advocates for the parties and we have gone through the pleadings of the parties, evidence adduced by them and the contents of this appeal and the grounds.

4. At the very outset the learned Advocate for the respondents argued that the order of learned Member Mr. Muhammad Akbar dated 13-9-2000 by which order he allowed the appellant to amend his petition was totally illegal, absurd and coram non judice. He argued that although the Court has power to allow suo motu amendment but that should be limited to a particular matter and not general that the whole complexion of the matter may be changed.

5. As against this the learned Advocate for the appellant argued that the provisions of C.P.C. or Cr.P.C. are not applicable hence under the provisions of I.R.O., the Commission has powers to pass such order of conversion of a complaint into civil petition.

6. The contention of the learned Advocate for the respondent has sufficient force while the contention of the learned Advocate for the appellant is beyond the scope of law. The procedure prescribed for the criminal matters is different from the procedure prescribed in civil matters. There is no law by which a criminal complaint can be converted into a civil suit/petition. If the criminal complaint for any reason was found defective or not maintainable then the recourse for the appellant was to have withdrawn the complaint and could have filed fresh petition. But conversion of criminal case into civil case is not permissible under the law. The contention of the learned Advocate for the appellant has absolutely no force that NIRC can pass any order. The NIRC functions under the law and it has to pass orders in accordance with law. Although the C.P.C. is not strictly applicable but the process prescribed by the C.P.C. is being followed by the NIRC. The NIRC cannot work and function in vaccum and it has to follow the law and work in accordance with law. Accordingly the conversion of criminal complaint into civil petition was totally illegal and without jurisdiction.

7. The learned Advocate for the respondents then argued that if it may be treated as a criminal case then the dismissal of complaint is not appealable to the Full Bench. So also acquittal is not appealable. In this connection he placed his reliance upon many authorities namely: (i) 1980 PLC 800 (ii) 1980 PLC 1191 (iii) 1987 PLC 674 In all these above authorities it has been held that only the sentence on conviction is appealable to the Full Bench under section 22-D of the I.R.O., whereas the acquittal has not been made appealable before the Full Bench.

8. He further argued that if this petition is to be treated a civil petition then the appellant being terminated employee has no right to approach the Commission for his reinstatement in service. He argued that the appellant was dismissed from service by order dated 17-12-1998 whereas the appellant filed his first complaint on 25-6-1999 and he filed present petition on 20-10-2000. He argued that from any angle this petition is not maintainable because unfair labour practice, if any, had already been done and completed and NIRC cannot entertain the cases where unfair labour practice has already been committed. He argued that the NIRC can reinstate a terminated employee while finding the employer guilty of unfair labour practice and not otherwise.

9. On the other hand, the learned Advocate for the appellant argued that the NIRC can exercise the powers of Labour Court under section 25-A and 34 and in the exercise of said power can reinstate the terminated employee into service.

10. We have considered the arguments of learned Advocate of the parties. We are in agreement with the arguments of the learned Advocate for the respondents. It is true that NIRC has no jurisdiction to reinstate a terminated employee because the unfair labour practice, if any, stands already committed and the NIRC has no powers under Regulation 32 to reinstate a terminated employee. The NIRC deals with two types of unfair labour practice (i) which is likely to be committed and the other (ii) which has been committed. The unfair labour practice which has already been committed is an offence punishable under section 53 for which a criminal complaint has to be filed and if the NIRC finds the employer guilty and awards him a conviction then as a consequential relief the NIRC may reinstate the terminated employee but not otherwise. The other sort of unfair labour practice is which may be committed for which the NIRC has powers to prevent the commission of future unfair labour practice. There is a chain of authorities by which it has been consistently held that without awarding conviction to the employer the NIRC has no jurisdiction to reinstate a terminated employee. In this connection reliance can be place upon judgment of Sindh High Court reported as 1984 PLC 1342 which was authored by his Lordship Mr. Justice Ajmal Mian as he then was. In this authority the Sindh High Court has taken all the factors into consideration including the implications of sections 25-A and 34 of I.R.O. and various authorities on the point. It was observed by the Hon'ble Sindh High Court in the said authority as under:-- "National Industrial Relations Commission, held, was empowered under Regulation 32 clause (2) to prohibit doing of an act/omission which constituted an unfair labour practice. Commission not vested with such power in respect of an unfair labour practice already committed and covered by Regulation 32(1)."

11. The Lahore High Court in its judgment reported as PLD 1976 Lahore

611. In para 11 of the said judgment has held: "that the regulations do have a statutory basis and force and they do expressly provide and empower the Commission and to direct the reinstatement of the employees but such a direction has been made dependent on the Commission's finding the person standing trial guilty under section 53 of the Ordinance. Such a power of directing reinstatement is not ancillary or incidental to the process of adjudication but is consequential to a finding of guilty."

12. There are various other authorities on this point which are as under:- (i) 1984 PLC 397 (ii) 1984 PLC 1645 (iii) 1994 PLC 1480 (iv) 1990 PLC 599 All the abovementioned authorities make it abundantly clear that the N.I.R.C. can reinstate a terminated employee only in a criminal complaint and, that too, subject to the finding the employer guilty and not otherwise.

13. Admittedly the appellant is a civil servant by virtue of section 2-A of Service Tribunals Act. If he was terminated from the service then he had to approach the Federal Service Tribunal for his reinstatement as his case related to terms and conditions of service. He had no remedy before the learned Single Bench for his reinstatement in service. The appellant chose a wrong forum for the purpose of getting relief. His petition was absolutely not maintainable before the learned Member and he has rightly dismissed his petition being not maintainable.

14. On merits also the petition is not maintainable because the respondents had initiated legal and proper enquiry, gave sufficient opportunities to the appellant to put up his defence and the Enquiry Officer finding him guilty submitted his report and in accordance with that report the respondents removed the appellant from service. This action of the respondents cannot be said to be acts of unfair labour practice. By initiating and holding inquiry the respondents cannot be said to be committing acts of unfair labour practice and accordingly on merits also the appellant has no case. In view of the above stated facts and circumstances, we have come to the conclusion that this appeal is not maintainable and it is accordingly dismissed and the orders of the learned Member is maintained. H.B.T./105/NIRC Appeal dismissed