2009 PLP 236 (PLC)

MUHAMMAD MUNIR PERACHA, J.

The Management of the Shalimar Recording and Broadcasting Company pasted a notice on the Notice-Board calling upon the employees possessing the requisite qualifications, which were mentioned in the notice to apply for the post of General Manager (Administration and Personnel). The petitioner through an application dated 5-5-2007, which was the last date for the submission of the application, applied for the said post. She was informed vide letter dated 24-5-2007 that she will be interviewed on 30-5-2007 at 10-00 a.m. However, vide another letter dated 28-5-2007, she was informed that the interview scheduled to be held on 30-5-2007 has been postponed. It appears that later, one Javed Iqbal was appointed on the said post. The case of the petitioner is that neither she was called for the interview nor considered for the post due to the trade union activities of her husband namely Muhammad Safdar Nafees, who was General Secretary of the Union. She approached National Industrial Relations Commission, Islamabad and brought to the notice of the Commission unfair labour practice allegedly committed by the Management under section 49(4)(e) of the Industrial Relations Ordinance, 2002. A Single Bench of the Commission vide judgment dated 28-7-2008 came to the conclusion that it is not a case of unfair labour practice and therefore, the NIRC has no jurisdiction in the matter. The petitioner filed an appeal before the full bench of the Commission against the said order of the Single Bench. However, Full Bench agreed with the findings recorded by the Single Bench and vide judgment dated 17-11-2008, dismissed the appeal filed by the petitioner. Through the present writ petition, the petitioner has approached this Court with the following prayer:-- "In view of the above submissions, it is humbly prayed that the National Industrial Relations Commission may graciously be directed to transmit the proceedings held before Mr. Muhammad Shabbir Jamal, learned Member, NIRC and Honourable Full Bench, NIRC to the concerned Labour Court Islamabad for decision afresh on the basis of evidence that may be led by the parties before it."

2. I have heard the learned counsel for the petitioner Mr. Mushtaq Hussain Bhatti, Advocate as well as Mr. Fakhar Mehmood Chanda Advocate, who appeared for the respondent-Management and have gone through the record of the case with their able assistance.

3. Referring subsections (6) and (7) of section 49 of the Industrial Relations Ordinance, 2002, learned counsel for the petitioner submits that the NIRC after having come to the conclusion that no case for unfair labour practice is made out was under legal obligation to refer the case to the Labour Court and the Labour Court then should have heard the case as if it was a grievance petition under section 46 of the Ordinance. Relies on the judgment of the High Court of Lahore, reported as Muhammad Ibrahim and another v. Pakistan Mineral Development Corporation through General Manager and 2 others, 2003 PLC 291.

4. On the other hand, learned counsel for respondents submits that no request was made to the Single Bench of the NIRC or to the Full Bench for referring the case to the Labour Court. He submits that the jurisdiction of the Labour Court under section 46 of the Ordinance is altogether different from the one possessed by the NIRC under section 49(4)(c) of the Ordinance.

5. Section 49(4)(e) gives power to the NIRC to:

"deal with cases of unfair labour practices specified in sections 33 and 64 on the part of employers, workmen, Collective Bargaining Agents, industry-wise trade unions of either of them or persons acting on behalf of any of them, whether committed individually or collectively, in the manner laid down under section 46 or 33 or in such other way as may be prescribed and to take, in such manner as may be prescribed by regulations under section 55, measures calculated to prevent an employer or workman from committing an unfair labour practice:-- Provided that, except during pendency of an industrial dispute, the Commission shall not grant interim relief against any action mentioned in section 63(d) of this Ordinance." Subsections (6) and (7) of section 49 read as under:

"(6) For the purpose of dealing with a case of unfair labour practice of which the Commission is seized, the commission may:

(a) proceed directly with the case; (b) ask the Registrar within whose jurisdiction the case has occurred or is likely to occur to enquire into it and submit a report; or (c) refer the case to the Labour Court within whose jurisdiction the case has occurred or is likely to occur, either for report or for disposal. (7) The Labour Court to whom the case is referred under clause (c) of subsection (6) shall enquire into it and, if the case was referred to it for report, forward its report thereon to the Commission or, if the case was referred to it for disposal, continue the proceedings and dispose of the case as if the proceedings had originally commenced before it and grant such relief as the Commission has the power to grant." When the Commission is dealing with the case of unfair labour practice, one of the option with NIRC is to refer the case to the Labour Court within whose jurisdiction the cause has occurred or is likely to occur, either for report or for disposal. If the case is referred for report, the Labour Court shall enquire into the matter and forward its report thereon to the Commission. If the case is referred for disposal to the Labour Court, the Labour Court can dispose of the case as if the proceedings had originally commenced before it and can grant such relief as the Commission has the power to grant. In case, the case is referred by the Commission to the Labour Court for disposal, the Labour Court shall dispose of the case as if the Labour Court is dealing with the case of unfair labour practice. It is to be noted here that it is the option of the NIRC to send the case to the Labour Court or to decide it by itself.

6. So far as the jurisdiction of the Labour Court to redress the individual grievances of a worker under section 46 of the Ordinance is concerned, the said jurisdiction is altogether different. The Labour Court has the power to redress the individual grievance of a worker even if unfair labour practice is not established, if the worker has been deprived from any right guaranteed or secured to him by or under any law or any award or settlement for the time being in force. The Commission of unfair labour practice is not a condition precedent for invoking the jurisdiction of the Labour Court. With due respect to the Honourable Judge, who decided the case of Muhammad Ibrahim cited above, I am unable to agree with his lordship's view that after recording a finding that the NIRC has no jurisdiction, unfair labour practice having not been established, is bound under the law to refer the case to the Labour Court. His lordship relied on an earlier judgment reported as Manager (Admn), House Building Finance Corporation, Zonal Office, Multan v. Punjab Labour Court No.8 Bahawalpur and others, 1995 PLC

44. However, in the said case, the NIRC has referred the case of unfair labour practice brought before it to the Labour Court instead of proceeding with the case itself.

7. There is no force in the writ petition, which is dismissed with no order as to costs. However, I have been informed that before invoking the jurisdiction of the NIRC, the petitioner has issued grievance notice to the employer. If that he so, she can approach the Labour Court under section 46 of the Ordinance. She may file an application for condonation of delay in filing the grievance petition. H.B.T./W-10/Isl. Petition dismissed.