2011 PLP 72 (PLC)

S. ZAKIR HUSSAIN, J.

This Constitutional Petition has been preferred against the order of the Labour Court entertaining the matter of permission to proceed against the petitioner on the basis of the charge sheet issued by the respondent against him on misconduct. The petitioner is the Secretary of the Trade Union, which serves as Collective Bargaining Agent as well. He is representing the industrial dispute relating to the charter of demand of the employees that being dispute between the parties, went to the Labour Court, where it is pending disposal. The said charge-sheet being of subsequent date to the said proceedings, was disputed and challenged by the petitioner directly in the National Industrial Relations Commission (N.I.R.C.), which passed its order dated 12-1-2008. The operative para whereof, is as follows:

"Meanwhile the .respondents are restrained from dismissing, terminating, removing, suspending or passing any order adverse to the employment of the petitioner on the basis of-charge-sheet dated 23-12-2007 filed as Annexure "P/12" with petition till the next date." The respondent preferred the matter or the said charge sheet to the Labour Court under section 65(2) of the Industrial Relation Act, 2008 seeking thereby the Permission to carry out departmental proceedings and taking final action thereagainst. The said provision of law is produced as follows:

"Notwithstanding anything contained in subsection (1), an officer of a registered trade union shall not, during the pendency of any proceedings referred to in subsection (1), be discharged, terminated, dismissed or otherwise punished for misconduct, except with the previous permission' of the Labour Court. However, the terms and conditions of the employment secured by the workers through collective bargainings, agreements, settlements; awards and decisions of courts shall continue to be binding upon the parties until revised for betterment of workers." Since the matter is sub judice before the Labour Court, a request for permission for proceeding further against the charge sheet in question, by the respondent, against the petitioner, falls within the purview of the Labour Court, and the plain reading of the provision referred to above, supports such view very much. The petitioner challenged the said action of the respondent before the N.I.R.C. being violative of its order referred to above. The N.I.R.C. heard' the matter and decided the same by its order dated 6-11-2010, which is now reported as 2010 PLC 159 N.I.R.C, Muhammad Zaki v. Messers Singer Pakistan Limited, through Chairman and 4 others. The said move of the petitioner, was dismissed by the N.I.R.C. through the said reported order, head-note whereof is as follows: "--Ss. 25(8)(g), 26, 27 & 28

National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln. 32(2)

Unfair labour practice by employers--Complaint- Interim order

Appeal to Commission

Complainant filed petition along with stay application alleging certain acts of unfair labour practice on the part of employers

While admitting said petition interim prohibitory order was passed which order later on was confirmed

Complainant in his complaint had asserted that employers had filed an application before Labour Court for permission to dismiss complaint and that by filing said application, employers had committed contempt of the court

Main petition was pending before the Bench of Commission and vires of unfair labour practice was to be examined at trial

Law, however, provided that an employee even an office-bearer of Collective Bargaining Agent could be terminated or dismissed with prior permission of the Labour Court concerned

While confirming the interim stay order in earlier petition, the observation given was tentative and was not final

While approaching the Labour Court for getting permission for dismissing the complainant, the employers had adopted a legal course and their said act did not fall within the ambit of unfair labour practice

Complaint meriting no consideration, was dismissed." In the said reported order of the N.I.R.C., it is made clear by holding that the Order dated 12-1-2008 was tentative in nature and not final and by approaching the Labour Court concerned for getting the requisite permission in the matter in question, the respondent/employer has adopted the legal course and such act did not fall within the ambit of unfair labour practice, and on such basis, the N.I.R.C. concluded the matter of violation of its order against the petitioner. The petitioner thereafter filed this petition in which the orders of N.I.R.C. are not brought in question and even caused to be sidelined, whereas the instant challenge is confined only to the matter of approaching the Labour Court (seeking permission to departmental proceedings and taking appropriate action against the petitioner against the aforesaid charge-sheet), by the respondent, and the said challenge impugned the act and order of the Labour Court of entertaining the said move of the respondent. During the course of arguments, the learned counsel for the petitioner, states that the aforesaid last order of the N.I.R.C. indeed, is sub judice before the full bench thereof, but the N.I.R.C. is not in existence and its coming into being afresh, may cause extraordinary delay, which ultimately would be a source of delay in disposal of the petitioner's instant matter and the petitioner reasonably apprehends the loss of his employment at the hands of the respondent under the garb of the matter pending in the Labour Court, which may stand decided in their favour or against the petitioner and hence, the petition is very much entertainable. He further submitted that the powers of the N.I.R.C., are limited and do not cover undoing of the impugned act or order of the Labour Court, and therefore, being left with no other option, he has preferred the petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, as a matter of an immediate and efficacious remedy available to him in the matter. He further states that since the lawful purpose has been put to practice by the Petitioner as a Secretary to the Trade Union/Collective Bargaining Agent, who has acted bona tide and not against any interest prejudicial to the respondent, no question of any misconduct or departmental proceedings against the petitioner therefor does arise and the said departmental proceedings (of the respondent) are nothing but a way out to win the petitioner over and or to victimize him for settling accounts of his aforesaid bona fide and lawful activity, which-has annoyed the respondent and has become a matter of ego or prestige to them for no valid reason as well. In other words, the request made to the Labour Court if granted, would serve the unfair purpose of the respondents, for the same would screen off their hurdle by removal of the petitioner on the one hand and they would thereby get rid of the charter of demand referred to above, on the other. The learned counsel for the respondent states that the Labour Court concerned, is not a party to this petition and the matter is sub judice before the competent forum and no final order has yet been passed and that even if any adverse finding, is arrived at, yet the petitioner would get the appropriate relief by approaching the Labour Appellate Tribunal thereagainst. He added that the petition being between private parties is not maintainable. The learned counsel further states that against the impugned order or the situation arising out therefrom, recourse to approach the appellate court, is still open to the petitioner and this petition being parallel in terms of proceedings against one and the same dispute is not permissible. As per his contention, the matter as already stated, is already sub judice before the competent forum, and so also that the matter, which can be questioned in the appropriate legal forum provided by the law and particularly when despite availability of such forum or remedy, the petitioner has chosen to approach this court under Article 190 of the Constitution of Islamic Republic of Pakistan, 1973, is not a permissible practice specially when a fact finding matter, is to get adjudicated for which, the competent forum is the Labour Court concerned or the . Tribunal referred to above. However, in these circumstances, the learned counsel candidly suggested a via media that this petition can be decided by way of the order directing the Labour Court to decide the matter of the said charge sheet and that of the permission sought thereagainst by the respondent in keeping with the points factual and legal both as put forth before this court, and so also taking into consideration the orders of the N.I.R.C. or atleast the circumstances, which became the basis thereof; and simultaneously, showing another way out to the petitioner, to approach the appellate forum against the matter impugned in this petition. He has cited the case law as PLD 1984 Kar. 519 Messrs Norwich Union Fire Insurance Society Ltd. v. Muhammad Javed Iqbal and another, which is upheld in the case reported 1986 SCMR 1071, PLD 1979 Kar. 725, 1981 PLC 561 and 1985 PLC 754, which are on same footings. In support of his respective contentions, the learned counsel for the petitioner cited PLD 1987 Kar. 67, 2007 UC 14 Shah Murad Sugar Mills Limited v. Mir Ali Muhammad and others 1984 PLC 115, 1980 PLC 752 and 1984 PLC 1342, which are not identical to the point/controversy involved in the matter. In these circumstances, I am of the view that the proper course has been adopted by the respondent by approaching the Labour Court under section 65 of the aforesaid Act, where the matter is sub judice and no final order has yet been passed and so also the remedy is very much there even against the order if any, adversely passed against petitioner in such recourse of legal process. Any how, the petition is misconceived and merits no consideration. The Labour Court is however, directed to decide the matter of the permission in question within 15 days without fail. The petitioner is at liberty to challenge the impugned order of the Labour Court before its appellate forum. The petition stands disposed of in the above terms. This court disposed of the petition by its short order dated 30-9-2010 for the reasons to be recorded later on. The above are the reasons of the short order referred to above. H.B.T./M-186/K Petition disposed of.