2006 PLP 108 (PLC)

SYED ALTAF HUSSAIN SHAH (MEMBER).

Feeling aggrieved against the impugned order dated 20-5-2003 whereby the learned Single Bench of this Commission at Karachi, while disposing of the stay application filed as incidental to the main grievance petition under section 49 (4)(e) of the I.R.O., 2002, reinstated the respondents Nos.2 to 15 in service, the respondent-management (appellant herein) has filed the instant appeal challenging the impugned order, inter alia, on the ground that the learned Member has exercised such powers as were not vested in him and hence the impugned order has been passed without jurisdiction as also in contravention of the provisions of the I.R.O. and as such is lible to be set aside.

2. After having heard the, learned counsel for the parties, we, for the reasons recorded below, are inclined to accept this appeal and set aside the impugned order dated 20-5-2003. (i) Notwithstanding the respondents specific prayer in their original grievance petition for restraining the appellant to pass an adverse order against their employment, learned Member while admitting the respondents' petition for hearing, had restrained the appellant only from gate stopping the respondents. He had neither restrained the appellant from passing any adverse order as to the employment of the respondents nor had he placed any restraint on the appellant's right to proceed with the inquiry proceedings against the alleged charge of misconduct levelled against the respondents. It is pertinent to state that in the aforementioned grievance petition the respondent had impugned the charge-sheet as a consequence where of the respondents, in due course of inquiry, were found guilty of misconduct. (ii) Since the learned Member was fully aware-Of the issuance of charge-sheet and the result of inquiry easing there from and had not restrained the appellant from proceedings with the inquiry proceedings, he could not pass an order with retrospective effect. Locus poenitentia in such circumstances is not available to judicial officer nor is he competent to restore the situation which due to his own failure has gone out of his control. The impugned order therefore has no basis either in law or reason. (iii) Even otherwise the respondent No.1 being an un-registered trade union and respondents Nos.1 to 15 not being the members of the C.B.A. or even a registered trade union could not claim the pendency of industrial dispute which is regarded as a necessary prerequisite for grant of stay order, the learned Member of this Commission was not competent to grant an interim order within the contemplation of proviso to clause (e) of section 49(4) of the B I.R.O. 2002. This being so, the impugned order is absolutely illegal and without jurisdiction. (iv) Powers of a civil Court in granting interim relief within the purview of order 39 CPC are entirely different from those vested in this Commission. This Commission has to grant interim relief within the framework of the I.R.O. read with Regulation 32(2) of the NIRC (Procedure and Functions) Regulations, 1973. The powers of this Commission in respect of granting interim relief are very limited and only those actions can be prevented which apart from falling within the purview of sections 63 and 64 of the I.R.O., 2002 have yet to be committed. The learned Member of this Commission had no powers under Regulation 32(2) of the N.I.R.C. (Procedure and Functions) Regulations, 1973 to reinstate the dismissed employees while disposing of an application for grant of stay order. The upshot of the above discussion is that the impugned order dated 20-5-2003 is absolutely illegal, void ab initio and being without jurisdiction is set aside. This appeal is accepted. H.B.T./111/NIRC??????????????????????????????????????????????????????????????????????????????? Appeal accepted.