1976 PLP 897 (PLC)

...............Appellants versus Muhammad Hassan Ex-Store Supervisor, KSB Pumps Company Limited Hassanabdal . ... ..Respondent Present: Appellants with their counsel Mr. Ayub Bokbari, Respondent with his counsel Maulvi Sirajul Haq On 5th May, 1973, a complaint was filed by Muhammad Hassan before the Commission alleging unfair Labour practice against the Manage ment of KSB Pumps Company Limited, Hassanabdal. The learned Member, Mr. Mamoon A. Kazi, issued notice to the respondents for appearance on 26th June, 1973. At the outset, the learned counsel for the respondents raised the objection that the Commission has no jurisdiction to entertain the complaint against the respondents. The learned Member, however, initiated proceedings against the respondents. Against that order, the respondents moved the High Court, Lahore in writ petition challenging the jurisdiction of the Commission to entertain the application under section 53 of the Industrial Relations Ordinance, 1969. Theneupon Mr. Justice S. Rehman vide order dated 29-6-73, was pleased to make the following order:- "Call for comments from respondent No. 2 who has passed these orders. In the meantime, proceedings on merits shall be stayed provided that they can be started only after deciding the question of jurisdiction as a preliminary. By now, the learned Member has decided the question of jurisdiction vide his order dated 30-7-1973.-- He has held that he is competent to initiate proceedings sun mote under section 53 of the Industrial Relations Ordinance, 1969 in exercise of the powers vested in him under section 22-A (9) (a) of the said Ordinance. The respondents (Appellants in the present case) have, however, challenged the order dated 30-7-1973 passed by the learned member in appeal before the Full Bench of the Commission. We however, find that the learned Judge of the High Court did not stay the proceed ings. He was only pleased to direct that the proceedings should be started after deciding the question of jurisdiction as a preliminary. Needless to recapitulate that the question of jurisdiction has been decided. There is no bar to keep the trial of the case in abeyance any further. Since the matter qua jurisdiction of the Commission to entertain the complaint is subjudice, we are not prepared to decide this matter in appeal. The respondents (appellants in this case) are directed to get the matter decided by the High Court. This appeal therefore, is infructuous and as such dismissed. It will not be out of place to mention that on 26-9-73 we had directed the learned member to keep the trial in abeyance till such time as the orders are announced by the civil Court and the High Court. It is a common ground between the parties that the complainant has withdrawn the civil Case and the High Court never stayed the pro ceedings of the case. In these circumstances, the order with. regard to the staying of proceedings was passed under a mistaken notion and as such it is vacated. (Zakaullah Lodhi) (Bashir Ahmad Malik) (Abdul Hamid Malik) Member Member Chairman 13-12-73 13-12-73 13-12-73."

4. The petitioners have come up in writ petition against the afore mentioned proceedings and orders to this Court. It may be mentioned that on 7-5-1974 Writ Petition No. 1250/S/73 was withdrawn by the petitioners. My learned brother S. Rahman J. on that date passed the following order: "Syed Sharif Hussain Bokhari Advocate. Permitted to withdraw without prejudice to the petition against the subsequent order. Dismissed as withdrawn."

5. Learned counsel for the petitioners submitted that since this Court had indicated in its earlier order dated 29-6-1973 that the question of jurisdiction was to be decided by the learned Single Member of the Commission as a preliminary issue, therefore, it meant brat that matter was to be decided both by the learned Single Member of the Commission as well as the appellate authority or authorities. In the instant case, though the learned Single Member of the Commission had decided the issue but the learned Full Bench of the Commission refused to decide the appeal against the same observing that "since the matter qua jurisdiction of the Commission to entertain the complaint is sub judice, we are not prepared to decide this matter in appeal. The respondents (appellants in this case) are directed to get the matter decided by the High Court. This appeal, therefore, is infructuous and as such dismissed". This, according to the learned counsel, tantamounts to refusal to exercise jurisdiction in the matter of deciding the appeal. The contention seems to have merit. It is to be pointed out that the civil suit had been withdrawn by employee on 27-9-1973 and when the order by the Full Bench of the Commission was passed on 13-12-1973, no civil suit was pending. NQ doubt, the earlier sprit petition was pending in this Court but that could not render the appeal before the Full Bench of the Commission as infructuous. If the learned single member of the Commission had the jurisdiction to decide the question o: jurisdiction, the same could be done by the appellate forum, namely, the full Bench of the Commission as well. However, in view of the later development that the writ petition stood with drawn on 7-5-1974 there is apparently now no hurdle in the way of the Full Bench of the Commission to decide the appeal, which hurdle as above observed did not even earlier exist. It was the view of the Full Bench of the Commission itself the no stay order was operative from the side of this Court and if that was so, then there was no justification to refuse to decide the appeal or to put in other words to refuse to exercise jurisdiction in that respect. The finding of the appellate authority that the appeal before them was infructuous was also not correct, inasmuch as, it was a very much live appeal involving a question on which the High Court had left the authorities concerned to express their view in any manner they liked. However, instead of doing their duty in that respect the appellate authority directed the concerned appellants to get the points decided from this Court. This was not a lawful direction, inasmuch as, it was the duty of the appellate authority, in the first instance, to determine that question and it was thereafter that recourse could be had to this Court to get determined whether the decision of the Commission was with or without lawful authority. The Commission, it appears, did not comprehend the law on the subject correctly and reversed the process expecting that the question which was to be decided by the Commission itself should be determined first by this Court. The procedure directed to be followed by the Commission was not warranted by any law on the subject.

6. The upshot of the above discussion is that the present writ petition is accepted, the order of the Full Bench of the Commission, which suffers from refusal to exercise jurisdiction vested in them by law, is declared to be without lawful authority and of no legal consequence against the petitioners, and is hereby quashed, with the result that the appeal remains pending before the Commission who are directed to do their duty and decide the same in accordance with law after hearing all concerned on the subject. There shall be no order as to costs. Petition accepted.