1984 PLP 367 (PLC)

(4) ... .. ...

6. Shorn of details it may be said for our present purpose that Rule 2 would be invoked in a suit for restraining the defendant from committing breach of contract or other injury. In such a suit the plain tiff may apply to the Court for a temporary, injunction to restrain the defendant from committing the breach of contract or injury complained of or a breach of contract or injury of a like kind arising out of the same right. Thus, in order to invoke the provisions of this rule to secure a temporary injunction a suit for restraining the defendant from commit ting breach of contract or other injury should be pending adjudication before the Court or it should have given its judgment on it. In this case an application under section 25‑A of the Industrial Relations Ordinance, 1969 is pending adjudication before this Commission. Now section 25‑A of the I.R.O. 1969 provides that "a worker may bring his grievance in respect of any right guaranteed or secured to him by or under any law or award or settlement for the time being in force to the notice of his employer " If the employer fails to give a decision or if the worker is dissatisfied with that decision he ‑may take the matter to the Labour Court..." In other words it is only a grievance' in respect of a right guaranteed or secured to a workman by law etc. which could be taken to a Labour Court. Grievance, under section 25‑A of the I.R.O. is a legal injury which has already occurred and completed. It is not an injury which is likely to occur in future for that would be no injury but apprehension of injury. An application under section 25‑A of the I.R.O. 1969 is, therefore, different from a suit for restraining the defendant from committing breach of contract or injury contemplated in rule 2, Order XXXIX, C.P.C. In order to be maintainable an application under section 25‑A of the I.R.O. 1969 must be about a grievance which has already taken place. An application for temporary injunction on the other hand can only be made in a suit where breach of contract or the injury though apprehended but has not been committed by the defendant. A Looking at the four prayers in the main application under section 25‑A it is easy to discent that they relate to the grievances, which have already taken place. Their two grievances in the main petition relate to the denial of wage and non‑payment of arrears of wages on account of weekly rests and festival holidays. The other two prayers are for being treated as permanent Calligraphists while they have been admittedly treated as temporary Calligraphists and for being restrained from being considered in a different set of category for terminating their services. This is also admitted to have taken place already as stated at page 7 of the application under section 25‑A. In these circumstances since no suit or application for restraining the defendant from committing the breach of contract or injury is pending, the application under Order XXXIX, rule 2 is misconceived and incompetent and is liable to be dismissed on this ground alone.

7. The main petition from which this application under Order XXXIX, rules 1 and 2 flows has been filed under section 25‑A of the I.R.O., 1969. Subsection (4) of that section contemplates the grievances to be taken to a Labour Court. An individual workman's grievances could however be brought also before the N.I.R.C. in virtue of the powers con ferred on it under section 22‑A (8) (g) read with section 22‑B (3) (a) of the I.R.O., 1969 which provides, in essence, that in relation to cases based on unfair labour practice brought before the Commission for redress of in dividual grievance in respect of any right guaranteed or secured to any employer or workman, the Commission may perform such functions and exercise such powers as are performed and exercised by a Labour Court. Now subsection (4) of section 25‑A states that "where the matter is taken to the Labour Court it shall give a decision within seven days from the date of the matter being brought before it as if such matter were an industrial dispute". Thus, it is apparent that the matter of an indivi dual workers grievance is to be treated like industrial dispute. For deal ing with these matters section 36 of the Ordinance ibid which prescribes the powers of a Labour Court states as follows :‑

36. Procedure and powers of Labour Court.‑(1) .................. (2) A Labour Court shall, for the purpose of adjudicating and de termining any industrial dispute, be deemed to be a Civil Court and shall have the same powers as vested in such Court under the Code of Civil Procedure, 1908 (Act V of 1908) including the powers of : (a) enforcing the attendance of any person and examining him on oath. (b) compelling the production of documents and material objects, and (c) issuing commissions for the examination of witnesses or documents. (3) ... ... ... ... ... ... , ... (4) :.. ... ... ... ... ... (5) .

7. Some of the functions of the Labour Courts are given in sub section (5) of section 35 which is reproduced

35. Labour Court‑(I) .................. (2) ... ... ... ... ... ... (3) ... ... (5) A Labour Court shall ............... (a) Adjudicate and determine an industrial dispute which has been referred to or brought before it under this Ordinance. (b) Enquire into and adjudicate any matter relating to the im plementation or violation of a settlement which is referred to it by the Provincial Government. (c) Try offences under this Ordinance (and such other offences under any other law as the Provincial Government may by notification in the official Gazette, specify in this behalf). (d) Exercise and perform‑such other powers and functions as are. or may be conferred upon or assigned to it by or under this Ordinance (or any other law)".

9. The purpose of citing these powers and fanctions of the Labour Courts is that the Labour Courts for the purpose of adjudicating and determining any industrial dispute which includes the individual grievance also, shall be deemed to be a civil Court and enjoy the powers of such Court. These powers are however limited to the extent of adjudicating and determining an industrial dispute. The powers under Order XXXIX, rules 1 and 2 are not included in the powers of adjudicating and deter mining any industrial dispute, hence neither a Labour Court nor this Commission has the authority to pass any order in the nature of interim injunction under Order XXXIX, rules 1 and 2, C.P.C. This view of the law has been well‑settled. One could refer to the authoritative dictum of Mr. Tufail Ali Rehman, Chief Justice in a Division Bench of Sind High Court in Brooks Bond Limited v. Second Sind Labour Court Karachi (P L D 1973 Kar. 189) or to that of Mr. Z. A. Channa, J., Labour Appellate Tribunal Sind's judgment in Abdul Razak v. Divisional Mechanical Engineer, Pakistan Railways Sukkur (1981 P L C 737). This, therefore, is another ground on which this application is liable to be dismissed.

10. Subsection (1) of section 22‑F of the I.R.O. provides that the Commission may make regulations relating to its procedure and per formance of its functions. These regulations shall have effect notwith standing anything inconsistent therewith contained in the Evidence Act, 1872 (I of 1872) the Code of Criminal Procedure 1898, (Act V of 1898), the Code of Civil Procedure, 1908 (Act V of 1908) or any other law for the time being in force Consequently the N.I.R.C. (Procedure and Func tions) Regulations, 1973 were framed. Regulations 19 of these Regulations states that

19. Application of the Code of Civil Procedure, 1908 (Act V of 1908).‑Subject to the provisions of these regulations, the proce dure prescribed under the Code of Civil Procedure, 1908 (Act V of 1908), in regard to suits may be followed, as far as it can be made applicable, in the proceedings for adjudication and determination of industrial disputes before the Commission." This procedure is specified in regulation 33(2) while the procedure for interim relief is provided under regulations 32 (,2). Thus, these provisions and not those of Order XXXIX, rules 1 and 2 bad to be invoked for when the law provides a thing to be done in a particular manner, it shall be done in that manner alone or not at all. On that ground also this appli cation is liable to be dismissed.

11. Further, I find that one Abdul Latif Tabassum, General Secretary of the petitioners union had already filed a Criminal Complaint No. 4(121);' 82 under section 15 of the Industrial Relations Ordinance, 1969 and secured on the same facts, an injunction against inter alia the same res pondents, in favour of the same petitioners and other workers. Respondents are already under orders not to commit any unfair labour practice, and not to transfer, dismiss, discharge or remove from employment the workmen including the present petitioners and that order still holds the field which is the relief sought in this case. In the circumstances an appli cation under Order XXXIX, rules 1 and.2. for a temporary injunction to the same effect is misconceived and incompetent. This is another ground on which this application is liable to be dismissed.

12. Collectively on the basis of all these foregoing reasons and grounds discussed above I dismiss this application. A. B. Application dismissed,