1996 PLP 37 (PLC)

‑‑‑‑Ss. 2(xxviii), 15, 16 & 22‑A(8)(g)‑‑‑Workman‑‑‑Jurisdiction of National Industrial Relations Commission‑‑‑Petitioner though was employee of employer's establishment, but a contract was executed between parties on basis of which certain work of excavation of coal was to be done by petitioner at the employer's establishment‑‑‑When due to certain reasons work of excavation was stopped by employer a dispute arose between parties and petitioner filed a civil suit against employer‑‑‑The status of petitioner as a workman, in order to invoke jurisdiction of National Industrial Relations Commission was itself denied by petitioner in civil suit and placed himself to be a contractor by profession‑‑‑Contract arrived at between parties also affirmed that agreement between parties was purely of civil nature‑‑‑Petitioner, thus was not a workman within meaning of S. 2(xxviii) of Industrial Relations Ordinance, 1969 and as such had no right to invoke jurisdiction of National Industrial Relations Commission‑‑‑Even otherwise element of unfair labour practice within meaning of Ss. 15 & 16 of Industrial Relations Ordinance, 1969 also having not been indicated in petition which was a necessary element for exercise of jurisdiction of National Industrial Relations Commission, petition filed by petitioner was not maintainable: Azam Jan Zarghoon for Complainant. Sultan Khalid for Respondent. This is a petition filed by Mr. Amir Nawab contending therein‑ that he was an employee of the respondents establishment and is also the General Secretary of the Balochistan National Mines Workers Union, Quetta. It was further contended that the applicant entered into a settlement/agreement with respondent's establishment for the excavation of Coal, from the respondent's Mines commonly known as Habibullah Mines Baiochistan but the respondent in the month of October, 1994 illegally and unlawfully closed the whole of the establishment in violation of section 15 of the I.R.O.,1969 sub‑clause (i) of the I.R.O., 1969 and therefore, the constitutes an offence punishable under section 53 of the I.R.O., 1969.

2. Notices were sent to the respondents to file comments/written statement. The respondents filed their written statement/comments wherein not only the application/petition was contested on factual grounds but also certain preliminary legal objections were raised to the maintainability of the petition.

3. I have heard both the learned counsel for the parties and have gone through the documents filed on record.

4. Admittedly there exists a contract between the parties dated 27‑9‑1994 and on the basis of this contract certain work was executed at the respondents establishment by the petitioner/complainant. However, due to some reasons the excavation of Coal was stopped by the respondents, probably in the month of October, 1994 thereafter a dispute arose between the parties and the petitioner filed a civil suit in the Court of Civil Judge, Quetta i.e. suit for specific performance of contract. There is also an order passed by the Civil Judge‑I Quetta dated 6‑4‑1995 whereby the application for grant of stay/interim injunction was disposed of. It is also admitted by the parties that the said suit is still pending. The status of the petitioner as a workman, in order to invoke the jurisdiction of this Commission, was itself denied by the petitioner in the civil suit thereby pleading himself to be a Contractor by profession. Besides, the contract dated 27‑9‑1994 also affirm that the transaction/agreement between the parties was purely of civil nature and it was executed between the parties i.e. the respondent and 7 other persons amongst whom the present petitioner is stranger. Besides, neither any union is formulated in the establishment nor the same is registered. Therefore, the claim of the petitioner to be the General Secretary of some other union is of no use to the facts of the present case thus it can safely be that the petitioner is not a workman within the manning of section 2, subsection (xxviii) of the I.R.O., 1969, therefore, has no right to invoke the jurisdiction of this Commission. Besides, the element of unfair labour practice within the meaning of sections 15 and 16 of the I.R.O.,1969 is also lacking in the petition which is a necessary element for' the exercise of jurisdiction by this Commission. As a result thereof it is held that the petition is not maintainable before this Commission which is dismissed without any further proceedings. H.B.T./235/NIRC Petition dismissed.