2002 PLP 274 (PLC)

(e) That the assumption of jurisdiction by the Member, NIRC under the circumstances, was illegal, contrary to law and of no legal effect and any order passed by the learned Member,, NIRC in wrongful exercise of assumption of jurisdiction is liable to be set aside. (f) That the NIRC (Procedure and Functions) Regulations, 1973 being sub legislation could not be considered to confer on the NIRQ' powers which are in excess of provision of the Industrial Relations Ordinance, 1969, and therefore, are of no legal effect. In any case and without prejudice to the legal 'rights, this Hon'ble Court be pleased to declare that the NIRC would not assume jurisdiction and prohibit the rights guaranteed and secured to the petitioner in law to initiate, disciplinary action against the individual workers for commission of misconduct or exercise such other rights recognized and permissible in law and that interference by the Commission against contracted rights of the employer both in law and otherwise is of no legal effect and is liable to be dismissed, and (g) It is further prayed that this Hon'ble Court may be pleased to grant such further and or appropriate relief to the petitioner, as it deem fit under the circumstances. The grievance of the petitioner as stated in the memo. of the petition is with regard to the order dated '13‑12‑2001 passed by respondent No.1; Member, National Industrial Relations Commission, whereby he allegedly assumed jurisdiction illegally in the matter of Applications Nos.4A(251) of 2001‑K and 24(250) of 2001‑K under section 22‑A(8)(g) of the Industrial. Relations Ordinance, 1969 (hereinafter referred to as the I.R.O.) read with Regulation 32(2‑C) of N.I.R.C. (Procedure and Functions) Regulations, 1973. It was further stated in the memo. of petition that aforesaid applications/petitions were filed by respondent No.2, which was the trade union registered with the Provincial Registrar of Trade Unions, Sindh and had no locus standi to invoke the jurisdiction of NIRC under section 22‑A8)(g), which could have been invoked .only by industrywise trade unions, federation of such trade unions and the federations at the national level. The facts giving rise to this Constitutional petition are the respondent No.2 on 13‑12‑2001 filed a petition under section 22‑A(8)(g) of the IRO before the NIRC stating therein vague, unspecific and general allegations to the effect that the management and its officers/executives of the petitioner compelled certain office‑bearers to give up the charter of demand served by the union which amounted to unfair labour practice and a general prayer was made that the petitioners be restrained from removing or terminating any office‑bearer of the union by way of dismissal, discharge or transfer. The petitioner further submitted that in spite of the fact that though the above petition was filed by a trade union registered at the Provincial level not being an industrywise trade union and also not having any representation beyond Karachi yet respondent No. l entertained the petition and by an ex parte order dated 13‑12‑2001 restrained the petitioner from removing/terminating by way of dismissal, discharge or transfer the office bearers and members of the union. It was further submitted that this stay order was absolutely illegal and had very adversely effected the petitioner as their right of proceedings against office bearers and member of the union who had committed acts of misconduct was suspended/curtailed which badly effected the performance and working of the petitioner establishment. Counter‑affidavit was filed by Ghulam Mahboob. General Secretary of respondent No.2 who submitted that three unions of Pearl Continental Hotels had formed a Federation which was registered, with NIRC and on acquiring knowledge of formation of the above. Federation, the petitioner challenged the same but subsequently their objections were dismissed on which the petitioner got annoyed and threatened to annul its effects. He further stated that in consequence of the above, management of the petitioner retrenched more than 300 workers in November, 2001 which was taken to Court by way of industrywise dispute under section 2(xiii) of the IRO which further annoyed the petitioner. He further' submitted that to exert pressure on the union, the petitioner filed a complaint under sections 54/55 of the IRO against the union and its office‑bearers and the office‑bearers were subjected to undue pressure which amounted to unfair labour practice was envisaged by section 15 of the IRO and the union was compelled to file a complaint under sections 54/55 of the IRO against the petitioner and its three officers, the proceedings whereof were got stayed by the petitioner by filing a revision application before Labour Appellate Tribunal. He also alleged that the office- bearers of the union were summoned by the management on different dates and were threatened to be transferred or removed if the charter of demand/industrial dispute was not withdrawn and in the circumstances respondent No.2 had do option but to file a petition under section 22‑A(8)(g) of the IRO read with Regulation 32(2) before the NIRC. He further submitted that the NIRC was fully empowered to exercise all or any of the powers vested in it on the basis of the petition filed by respondent No.2 and that the impugned order was lawful, proper and just in all respects. The petitioner filed affidavit‑in‑rejoinder through Irfan Bashir, their Human Resources Manager, wherein the contents of the counter‑affidavit of Ghulam Mahboob, General Secretary of respondent No.1, were vehemently denied. They denied that retrenchment of the workers was made on account of annoyance or due to unfair labour practice and submitted that on account of the event of 11‑9‑2001 in the USA, hotel business had been badly effected which forced the petitioner to terminate the services of daily wages workers by issuance of letters of termination Containing the reasons. It was further submitted that though there was no legal obligation yet the petitioner paid one month's salary in lieu of notice. Similarly, jobs on contracts and employees engaged by the contractors were terminated as they had become surplus and that 93 of the terminated employees had cleared their dues in full and final settlement, thereby completely severing their connections with the petitioner. The allegation of exertion of undue pressure on the union or its office‑bearers was also denied. It was reiterated that filing of the petition before the NIRC by respondent No.2, a Provincially registered trade union, was illegal and the same was not maintainable and further that prior to the above petition respondent No.2 had always been filing cases and agitating their grievances before the Labour Courts and the Labour Appellate Tribunal. It was further submitted that' it was not the petitioner but respondent No.2 who having failed t0 raise an industrial dispute resorted to acts of misconduct for exerting pressure on the petitioner for fulfilment of their illegal and unlawful demands. It was also reiterated that the NIRC had no jurisdiction to entertain the aforesaid petition and assumption of jurisdiction by NIRC resulting in the impugned order dated 13‑12‑2001 was absolutely illegal, unlawful and the impugned order was void ab initio. We have heard the arguments of Messrs Mahmood Abdul Ghani and Latif Saghar, the learned counsel for the petitioner and respondent No.2. The counsel had agreed that they would be advancing arguments for disposal of the petition finally. The issue involved in this Constitutional petition is with regard to the locus standi of respondent No.2 to invoke the jurisdiction of the NIRC for initiating proceedings of unfair labour practice against the employer/officers of the petitioners. It was submitted on behalf of the petitioners that respondent No.2,, being a trade union registered at the Provincial level and operating solely in the Province of Sindh did not have the right to invoke the jurisdiction of the N.IRC under section 22‑A of the IRO which sight was available only to an industrywise trade union, federation of such trade union or federation at the national level. For resolving the above issue, it will be necessary to examine the relevant provisions of the IRO. Subsection (8) of section 22A lays down the functions of the NIRC and clause (g) confers upon the Commission the powers to deal with the cases of unfair labour practices specified in sections 15 and 16 of the IRO on the part of employers, workmen, trade unions or either ‑of them or persons acting on behalf of any of them. According to clause (a) of section 22‑A(8), one of the functions of the Commission is to promote the formation of trade unions of workers within the same industry whether in establishment within a Province or in more than one province and federations of such trade unions. According to clause (b) of section 22‑A(8), yet another function of the NIRC is to promote the formation of federation at the national level. According to clause (c) of section 22‑A(8) another function of the NIRC. is to adjudicate and determine and industrial dispute to which an industrywise trade union or a federation of such trade union is a party. It will be pertinent to refer td subsection (12) of section 22‑A which provides that nothing in section 22‑A shall be deemed to exclude the jurisdiction of Labour Court to entertain cases of unfair labour practices on the part of employers or workmen, whether individually or collectively. From perusal of clauses (a), (b) and (c) of section 22A(8), it is to be inferred that the main functions of NIRC are to promote the formation of industrywise trade unions, federations of such trade union and federation at the national level. It will also be unseful to refer to clause (f) of section 22A(8) and as it appears to be a very important clause for determining the question of locus standi, it will be useful to reproduce the same as under;‑‑ "22A(8)(i) to try offence punishable under:‑‑ (i) section 53, other than subsections (1) and (5) thereof; and (ii) any other sections, in so far as they relate to employers or workers in relation to an industrywise trade union, a federation of such trade unions, a federation at the national level or officers of such union or federation. Sub‑clause (i) of clause (f) of section 22A(8) confers upon the NIRC power to try offences punishable under section 53 except the offences mentioned in subsections (1) and (5). Sub‑clause (ii) of clause (f) of section 22A(8) specifically confers powers on the NIRC to try offences provided in any other sections only in so far as they relate to employers or workers in relation to, an industrywise trade union, a federation of such trade union or. a federation at the national level. The provisions of sub‑clause (ii) of clause (f) of section 22A(8), therefore, in our view confers jurisdiction on the NIRC for taking congnizance and trying offences relating to unfair labour practices enumerated in sections 15 and 16 of the IRO only in relation to an industry‑wise trade union, a federation of such trade union or a federation at the national level. Reference may also be made to the Explanation appearing at the end of section 22A of the IRO which is as under:‑‑ Explanation. ‑‑‑In this section and in [the succeeding provisions of this Ordinance] the expressions 'industrywise trade union' 'federation of such trade unions' and 'federation at the national level' refer to a trade union' the membership of which extends to establishments in more than one Province and a federation of trade unions whose membership extends to registered trade unions in more than one Province. From a bare perusal of the above Explanation, it is to be inferred that the words 'trade unions' appearing in clause (g) of section 22A(8) of the IRO will be taken to mean an industrywise trade union, a federation of such trade unions or a federation at the national level. Thus, by virtue of clause (g) of section 22A(8), the NIRC will have jurisdiction to entertain applications pertaining to unfair labour practices filed by an industrywise trade union, a federation of such trade unions or a federation at the national level and a trade union/Collective Bargaining Agent having been registered at the provincial level without having any representation in more than one industry or more than one Province will have no right or authority to invoke the jurisdiction of NIRC under section 22A(8)(g) of the IRO in respect of unfair labour practice 'on the part of the empowers or the workers, This inference finds support from subsection (12) of section 22A which has not taken away or excluded the jurisdiction of Labour Court to entertain cases of unfair labour practice on the part of employers or workmen whether individually or collectively. It is, subsection (12) of section 22A which could be pressed into service by a trade union/CBA, registered at the provincial level for the purpose of, dealing with cases of unfair labour practice by the employers. Admittedly, respondent No.2 is a trade union at the provincial level. It has no representation in any other establishment or in any other province. It was submitted on behalf of respondent No. 2 that three (3) unions, of Pearl Continental Hotels and formed a federation which was registered with the NIRC. If so, the proceedings for unfair labour practice on the part of employers petitioners ought to have been initiated by such federation but it is not known as to why instead of proceedings. being initiated by such federation, they were initiated by respondent No.2 being a provincially registered trade union/CBA in the establishment of the petitioner. Great emphasis was laid on section 22A(9) of the IRO on behalf of respondent No.2 and it was submitted that clause (a) unambiguously and specifically conferred powers on the NIRC to initiate prosecution, trial or proceedings or take action with regard to any matter relating to its functions on the application of a party, or of its own motion. It was contended that the words 'a party' used in section 22A(9) of the IRO was broad enough and would bring within its scope a trade union registered by the Registrar of Trade Union thus negating the contention raised on behalf of the petitioner that only an industry-wise trade union, a federation of such trade unions and a federation at the national level could invoke jurisdiction NIRC for proceedings with cases of unfair labour practices committed by the employers. The contention advanced on behalf of respondent No.2 is without any substance. In the first place the issue before the Court in this Constitutional petition is the exercise of jurisdiction by the NIRC under, section 22A(8)(g) of the IRO to deal with cases of unfair labour practices specified in sections 15 and 16 of the IRO and whether such jurisdiction can be invoked by a trade union registered at Provincial level by the Registrar of Trade Unions. From a bare examination and consideration of section 22A(8)(g) of the IRO, it is to be noted that jurisdiction of NIRC under section 22A(8)(g) of the IRO can be invoked only by Industry-wise trade unions, federations of such trade unions and federations at national level. The second contention raised on behalf of respondent No. l that the words 'a party' appearing in section 22A(9) of the IRO would have to be used in a wider manner and would include a trade union registered at provincial level is not at all germane to the dispute and the issue which requires to be resolved. This is so because the scope and sphere of section 22A(9) of the IRO is altogether different from the scope and sphere of section 22A(8)(g) which confers power on the NIRC to deal with the cases of unfair labour practices and for taking measures calculated to prevent an empower or workman from committing an unfair labour practice, whereas section 22A(9) confers upon the NIRC power to initiate prosecution, trial or proceedings or take action with regard to any matter relating to its functions. Respondent No.2 had moved an application before NIRC invoking its jurisdiction under section 22A(8)(g) of the IRO. Reading the provisions of clauses (a), (b), (c), (d), (e); (f) and (h) of section 22A(8)(g) of the IRO and the Explanation to section 22A, the irresistible inference which can be had is that an application under section 22A(8)(g) for prevention of commission of an unfair labour practice would be competent only if it was filed by an industrywise trade union, a federation of such trade unions and a federation at the national level. Provision of section 22A(9) of the IRO would not be attracted to an application under section 22(8)(g) thus completely negating or ruling out the possibility of such application being filed by a party other than an industry‑wise trade union, a federation of such trade unions and federation at the national level. It will also be useful to refer to the order of Full Bench of the NIRC dated 27‑3‑2000 in Appeal No. 12(28) of 2000 upholding the order of learned Chairman NIRC in Case No. (307) of 1999 whereby application tinder section 22A(8)(g) of the IRO filed by a provincially registered trade union was dismissed in following terms:‑‑ ....If it be assumed as contended for the petitioner that the allegation so made or any other allegation amounts to unfair labour practice, petitioners may approach the Labour Court which is also possessed or the jurisdiction in such matters by virtue of subsection (12) of section 22‑A of IRO. It may also be observed that on the allegations made in the petition and in view of the admitted fact that the petitioner and the respondent‑union are registered with the Regional Registrar of Trade Unions, the petitioner cannot invoke the jurisdiction of this Commission under section 22A(8)(g) of IRO whereunder it has filed the petition. Needless to point out that the jurisdiction of this Commission extends only to the cases of industrywise trade unions, federations of such trade unions and the federations at the national level." Upon the above discussion, it was found that this Constitutional petition carried weight and rewired consideration as there could not be any doubt that respondent No.2 did not have the authority or right to invoke the jurisdiction of NIRC under section 22A(8)(g) of the IRO for dealing with the cases/matters unfair labour practice against the, employers/petitioners as the jurisdiction of NIRC could have been invoked only by an industrywise trade union, a federation of such trade union or a federation at the national level. By a short order dated 16‑1‑2002, this Constitutional petition after being admitted to regular hearing was allowed and the impugned order of respondent No.1. NIRC dated 13‑12‑2001 was set aside for reasons to be recorded later. These are the reasons for the said short order. S.A.K./P‑44/K