2002 PLP 238 (PLC)

DR. GHOUS MUHAMMAD, J.‑‑--The petitioner is a private limited Company. registered under the Companies Ordinance, 1981. It has challenged the order, dated 30‑6‑1996 passed by the respondent No.22 (NIRC) (Full Bench) as unlawful and without jurisdiction. Briefly stated the petitioners had filed an application under Standing Order 11‑A of the West Pakistan Industrial and Commercial (Standing Orders) Ordinance, 1968 (hereinafter referred to as the Ordinance, 1968) before Sindh Labour Court No.11, Karachi, for permission to close down the factory/establishment without waiting for the permission prayed for, the petitioner terminated services of the respondents Nos.2 to 21 who gave grievance notices against their termination and then filed grievance petition under section 25‑A of the Industrial Relations Ordinance, 1969 (hereinafter referred to as I.R.O., 1969) before the Sindh Labour Court‑II, Karachi and prayed for their reinstatement with full beck benefits. The application submitted by the petitioner for permission to close down the factory was heard and after completion of the evidence at most at final stage the learned Presiding Officer called for further documentary evidence regarding the status of the petitioner as employer but instead of supplying any certificate from the Factory Inspector, Labour Department etc. the petitioner approached the National Industrial Relations Commission on 13‑9‑1995 for transfer of the case from Sindh Labour Court No.II to the Bench of the Commission at Karachi. It is alleged that no notice was served upon the respondents Nos.2 to 21 either by the NIRC or by the learned counsel for the petitioner. The record shows that after about four days the Member NIRC proceeded ex parte to hear the transfer application of the petitioner and ordered the Labour Court to send the cases for disposal by the Commission and fixed the matter for hearing on 21‑9‑1995. It would be relevant to note that the Member NIRC treated the application of the petitioner as the main case bearing number 4‑A(376) of 1995‑K while application under section 25‑A of I.R.O., 1969 of the respondents Nos.2 to 21 was treated as Miscellaneous Application and was allotted Nos.24(163) of 1995‑K on 30‑10‑1995. The learned Member disposed of both the applications by allowing the closure of the factory and dismissing the workers prayers for reinstatement. However, he directed the petitioner to pay all the legal dues up to 30‑10‑1995, which was the date of the order. The petitioner filed a review application on 3‑12‑1995 seeking a modification of the order dated 30‑10‑1995 which was allowed to the extent that the legal dues up to the date of order, were denied to the workers and it was ordered that the dues may be calculated from the date of closure of the, factory. The respondents challenged the order, dated 30‑10‑1995 before the Full Bench of NIRC as well as the previous order, whereby the case was withdrawn from the Labour Court. This Appeal No. 12(14) of 1996 was allowed on 30‑6‑1996. This order has been impugned in the instant petition. We have heard learned counsel for the parties at length and perused the record. Learned counsel for the petitioner submitted that the respondent No. 2 passed the impugned order, which is self‑contradictory and inconsistent. He has also submitted that the point of limitation was also not appreciated properly with the result that the delay was condoned without assigning any cogent reason. Learned counsel for the respondents submitted that the petitioners move for transfer of case from Labour Court to Member NIRC was mala fide and illegal. NIRC had no jurisdiction to call for the record and proceedings in the Labour Court as according to section 22‑A(9)(b) the NIRC is competent to withdraw from a Labour Court any application, proceedings of appeals relating to unfair labour practice only. Lastly he submitted that the petition itself is not maintainable in law. Before examining the above submission, it would be advantageous to take note of the relevant provisions of the statute namely I.R.O., 1969, which was examined by the Hon'ble Supreme Court in Iftikhar Ahmed v. President, National Bank of Pakistan, PLD 1988 SC 53 paras. 7 and 8 thereof read as under: ‑‑ "

7. With the object mainly of regulating the relations between the employers and workers, the Industrial Relations Ordinance was promulgated by the President in November, 1969. By Ordinance IX of 1972, it was amended and inter alia, sections 22‑A to section 22‑F and section 25‑A were inserted therein. Section 22‑A(1) directed the Federal Government to establish the National Industrial Relations Commission. The functions of the Commission were set out in subsection (7) thereof. Amongst others, one of its functions was: ‑‑ "to deal with cases of unfair labour practices specified in sections 15 and 16 on the part of employer or workmen, trade unions or either of them or persons acting on behalf of any of them, whether committed individually or collectively, in the manner laid down under section 25‑A or section 34 or in such other way as may be prescribed and to take in such manner as may be prescribed by regulations and under section 22‑F, measures calculated to prevent an employer or workman from committing an unfair labour practice." Subsection (9)(a) of section 22‑A empowered the Commission to initiate prosecution, trial or proceedings or to take action with regard to any matter relating to its functions. Subsection (11) conferred exclusive jurisdiction on the Commission in matters which fell within its competence by providing that no Registrar, Labour Court or Tribunal should take any action or entertain any application or proceedings in respect of any matter which fell within the jurisdiction of the Commission The conferment of the exclusive Jurisdiction on the Commission was subject to a qualification which was set out in subsection (12). This subsection saved the jurisdiction of the Labour‑‑Courts to entertain the cases of unfair labour practices on the part of employers or workmen, whether individually, or collectively. This saving was again subject to a rider to the effect that a Labour Court would not take action or entertain any application or proceedings in respect of a case of unfair labour practice which was already being dealt with by the Commission. Apart from that subsection (9)(b) empowered the Commission to withdraw from a Labour Court any application, proceedings or appeal relating to an unfair labour practice.

8. Section 22‑B(2) permitted the Chairman of the Commission to constitute Benches from amongst its members. Under subsection (3) the Benches were inter alia to exercise such power and perform such functions as were exercised and performed by a Labour Court in relation to cases based on allegations of unfair labour practices brought before the Commission for trial of offences or enforcement of or for redress of individual grievance in respect of any right guaranteed or secured to any employer or worker by or under any law or any award." In para. 12 of the cited judgment it was further observed:‑‑ "

12. There is no merit in this contention. So far as filing of grievance petitions is concerned there is no specific provision in the Ordinance which may be taken to support the distinction spelt out by the learned counsel. If the intention had been that the employees of institutions organized on all Pakistan basis should approach the National Industrial Relations Commission alone for redress of their grievances there would have been some indication in the Ordinance itself. Not only there is no such indication in the Ordinance itself, the provisions of section 25.‑A which adumbrate the circumstances in which a Labour Court may be moved for redress have been extensively worded. It may perhaps be of interest to note here that even in respect of grievances arising out of unfair labour practices, curbing of which is a specific function of the Commission, the jurisdiction of the Labour Court has not been ousted. However, that may be, there seems to be no justification for holding that an employee whose terms are governed by an award made by the Wages Commission cannot seek redress for his grievance before a Labour Court." A plain reading of the above provision of law makes it clear that the governing words in the clause are in relation to cases based on allegations of unfair labour practices, brought before the Commission. In other words, the cases which the Benches of NIRC. are empowered to heard must have an element of unfair labour practice in them. As was held by the Hon'ble Supreme Court in the case cited (supra), it does not encompass cases where no allegation of unfair labour practices is made and sections 15 and 16 of, Ordinance, 1969 set out the instances of unfair labour practices on the part of the employer as well as workmen. Nowhere in the petition it is alleged and during the course of arguments also the learned counsel for the petitioner did not submit that any question of unfair labour practices was involved when the application of the petitioner and the workmen were pending before the Sindh Labour Court, which had the jurisdiction to deal with them. In these circumstances the order passed by the Member NIRC, summoning the R and P of both the applications from the Labour Court and their immediate disposal vide order, dated 30‑10‑1995 was absolutely illegal. The learned, counsel for the petitioner could not satisfy us as to what prompted the petitioners to submit transfer application before the NIRC Karachi for getting the grievance petition of the petitioner transferred when the matter was almost ripe for disposal. We are satisfied that member NIRC had no jurisdiction to pass the order for the transfer of the two applications. As observed earlier, the NIRC could have only withdrawn the case if the cases were referred to the Labour Court or to any other forum but had no power to withdraw the case of the petitioners from the original jurisdiction conferred by law on the Labour Court. This exercise can be legally done by a Sindh Labour Appellate Tribunal, Karachi under section 38(c) of Ordinance, 1979. We also find considerable force in the submissions of the learned counsel for the respondents that the Member NIRC after passing the orders dated 30‑10‑1995 had no power to review his own order. This could have been done only by a Full Bench of NIRC. The point of limitation was also dealt with in accordance with law by the Full Bench and we are of the view that the impugned order requires no interference. This petition having no merit is dismissed. Q. M. H. /M. A. K./S‑18/ K. Petition dismissed