1998 PLP 359 (PLC)

3. The Registrar after holding an enquiry, passed the above order under subsection (3) of section 10 of the I.R.O. cancelling the registration of Precision Rubber Products Workers Union and declaring that it had ceased to exist. The relevant portion of section 10 under which the Registrar passed the order as under:-- "

10. Cancellation of registration.

(3) The registration of a trade union shall be cancelled by the Registrar if, after holding such inquiry as he deems fit, he finds that such trade union has dissolved itself or has ceased to exist."

4. The Precision Rubber Products Workers Union and Labour Union preferred appeals before the Sindh Labour Court No. V, Karachi against the cancellation of registration of the appellant Trade Union and pending appeals filed an application for suspending the operation of the order dated 25-11-1996 cancelling registration of appellant Trade Unions. Thereupon, the learned Labour Court on that very day issued notice to the other side and till then made the following order: "Operation of impugned order is suspended."

5. While these appeals before the Labour Court remained pending the Precision Rubber Products (Pvt.) Ltd; filed these Revision Applications before the Labour Appellate Tribunal under section 38(3)(a) of the I.R.O., 1969 praying that the order of status quo passed by the fifth Sindh Labour Court being in nature of an order under Order 39, Rules 1 and 2, C.P.C. may be struck down is an order without jurisdiction, as such powers are not available to the Labour Court under section 36 of the I.R.O.

6. Mr. Mehmood A. Ghani for the management has referred to a Division Bench decision of the Sindh High Court by Tufail Ali, J. and Fakhruddin G. Ibrahim, J. reported in 1973 PLC 111, that subsection (2) of section 36 of I.R.O., 1969 does not confer upon a Labour Court all the powers of a Civil Court under the Civil Procedure Code but only such of them as may be described as procedural i.e. such as are required for the purpose of adjudication and determination of the dispute. That it is clearly not necessary in order to be able to adjudicate or determine a dispute, that pending the case a party be restrained from giving effect to order passed by it. That the main powers of the Labour Court are conferred by section 35(5) of the I.R.O. and not section

36. Powers under section 36 are incidental and precedural for the purpose of "adjudication and determination," For adjudication and determination it is not necessary that the respondent party be restrained from giving effect to the impugned order.

7. Mr. Mahmood A. Ghani has also referred to two short decisions of this Labour Appellate Tribunal reported in 1996 PLC 207 and 236.

8. Mr. Ashraf Hussain Rizvi for the Union has on the other hand referred to a decision reported in PLD 1975 Karachi 858 in the case of Employees Union v. Pakistan Insurance Corporation; that. "It is true that the court having power to pass order has also the power to pass ancillary and incidental order under certain circumstances to ensure due implementation of the final order "

9. The above ruling is by a Single Judge and the decision of the Division Bench already quoted has not been over ruled. The Labour Court is Court of special jurisdiction and the general principles observed by Civil Courts are not to be freely exercised. The learned Advocate for respondents has then referred to a decision of the Supreme Court in case of Sindh Employees Social Security institute v. Adamjee Cotton Mills PLD 1975 SC

32. That case was in respect of powers of a Social Security Court. It was observed that Power to grant Interim Relief was exercisable by the Social Security Court, if the power was ancillary or incidental to the Appellate Jurisdiction expressly conferred by the Statute. Even in the above ruling the general principles of granting Interim Relief are to be exercised by Appellate Court if grant of such relief was necessary or desirable to enable the Court to grant the final Appellate Relief. The policy of the Labour Laws is against the granting of interim stay of order of original Court in appeal or Revision, in view of the hardship the stay may occasion to a party for an indefinite period. The law provides under section 38(8) of I.R.O. that if in an appeal preferred to it, against the order of Labour Court directing the reinstatement of a workman, the Tribunal makes an order staying the operation of the order, the Tribunal shall decide such appeal within twenty days of its being preferred. Provided that if such appeal is not decided within the period aforesaid the order of the Tribunal shall stand vacated, on the expiration of this period. Thus, in cases of reinstatement under section 25-A of the I.R.O. the power of the Appellate Court to stay the operation of the order of the Labour Court has been limited to 20 days only after which stay will automatically cease. The possibility of the order of the original Court being stayed in appeal has not been ruled out and, therefore, to avoid hardship such power is limited to 20 days only. There is, thus, no conflict in the two sets of decisions quoted by Mr. Mahmood Ghani for the appellant Company and Mr. Ashraf Hussain Rizvi for the respondent Unions. Exception proves the Rule. Under the Brooke Bond case decision, the powers under O.XXXIX, Rules 1 and 2, C.P.C. are not available to the Labour Court to grant stay (sitting on original side). But the appeal Court may in exercise of appellate powers grant interim relief by stay of operation of the orders of original Court if such orders are ancillary and incidental to the relief sought, as held by the Supreme Court.

10. Whether stay is necessary being incidental and ancillary to the main relief, is a very complicated question of fact that has to be gone into by the C appellate Court. Under the I.R.O. the stay has been limited to 20 days duration only in cases of reinstatement as otherwise hardship would be caused to the workers if they are compelled to remain out of job till the case is decided.

11. In the present case Mr. Mahmood Ghani has argued that the factory having been closed down, the Union ceased to exist, as the workers were paid their full dues, and golden hand shake was effected. That their factory Unions automatically ceased. Whether to continue them pending the appeal, as ancillary and incidental would be a complicated issue of fact, depending on evidence; The Interim order of stay has been passed immediately on filing of the appeal before Labour Court against order of cancellation of Registration of the Unions by the Registrar, without recording evidence.

12. But the Labour Court has issued notice and granted stay for one week only. No final order as to 'stay' has been passed pending the appeal.

13. I would, therefore, be reluctant to interfere with the order which is yet to be passed after hearing the parties and which is a katcha order for notice period only.

14. Mr. Mahmood Ghani points out that the seven days stay is being extended from time to time and stay has remained in force for four months.

15. The R & P may accordingly be immediately' returned to the Appellate Court for deciding the interim application.

16. The Revision Applications are disposed of in terms of the above observations.???????? H.B.T./220/Lb.S ???????????????????????????????????????????????????????????????????????????????? Order accordingly.