2009 PLP 298 (PLC)

BASHIR AHMED MEMON (MEMBER).

By this single order I would like to dispose of 5 applications under Regulation 32(2)(c) of NIRC (P&F) Regulations, 1973 filed on 10-1-2009 by the above named petitioners as the facts of all the cases are identical in nature and dispute involved in all the five applications is same and the respondents management is also the same.

2. All these five applications were filed on 10-1-2009 under Regulation 32(2)(c) of NIRC (P&F) Regulations, 1973 by Mr. M.A.K. Azmati, Advocate on behalf of the petitioner with prayer to suspend the operation of retrenchment order, Annexure "P.3" and direct the respondents to allow and treat the petitioners in service till disposal of the case and to restrain the respondents from committing acts of unfair labour practice against the petitioners and not to harass, pressurize or take any adverse action against the petitioners till the disposal of main petition. On receipt of the notice the respondents filed their reply on these applications stating therein that the petitioners have themselves admitted that they have been terminated from employment vide letter, dated 2-1-2009. Such retrenchment letters have been produced by the petitioners along with the present applications. The respondents have given reasons of retrenchment of the petitioners in the letter, dated 2-1-2009. It is further stated that by service of retrenchment letter the petitioners, are ceased to be workmen as defined under Industrial Relations Act, 2008, as such the question of commission of unfair labour practice does not arise as the same can be committed against an employee and not outsider, therefore, in these circumstances the petitioners are not entitled for any interim relief in the present proceedings as granting of interim relief will amount to passing an order of status quo ante, which cannot be passed by this Commission, therefore, the instant applications have no merits and the same- may be dismissed. It is further submitted that Regulation 32(2)(c) of NIRC (P&F) Regulations, 1973 speaks about prohibition of apprehended acts of unfair labour practice and not the acts which have already been committed. The applications are, therefore, misconceived and may be dismissed accordingly.

3. I have heard arguments of Mr. M.A.K. Azmati, learned counsel for the petitioners and Mr. Shahid Anwar Bajwa, learned counsel for the respondents.

4. While arguing his case Mr. M.A.K. Azmati, learned counsel for the petitioners has pointed out' that all the 5 petitioners were seriously apprehending their removal from service, as such they rushed to this Bench of Commission and filed 5 separate petitions under section 25(8)(g) of I.R.A., 2008. Their petitions were admitted on 2-1-2009 and notice of main petitions as well as of stay applications was issued to the respondents. The - bailiff of this Bench of Commission went to serve the notice on the respondents and according to the endorsement - of the bailiff he went to the office of respondents Nos.1 and 2 on 2-1-2009 at about 2-55 p.m. and offered the notice to Personal Assistants of respondents Nos.1 and 2, on which he told him to approach Mr. Mansoor Qureshi as this type of job is being supervised by him and when he approached the office of Mr. Mansoor Qureshi, his Personal Assistant Mr. Javed told him that Mr. Mansoor Qureshi is not present and is out of Karachi, as such he has not received the notice. Thereafter he. went to serve the notice to respondent No.4, where respondent No.4 was not available and Chowkidar disclosed that the respondent had gone to Head Office. On the basis of this endorsement of the bailiff of this Bench it has been agitated by Mr. M.A.K. Azmati, the learned counsel for the petitioners that after getting knowledge of filing of the petition before this Bench of Commission by the petitioners, the respondents have hurriedly issued retrenchment order against the petitioners, which also amounts to contempt of Court. He, therefore, has prayed for suspension of retrenchment orders, dated 2-1-2009, as the same have been issued with mala fide intention.

5. On the other hand Mr. Shahid Anwar Bajwa, the learned counsel appearing for the respondents has argued that the present applications are filed under Regulation 32(2)(c) of NIRC (P&F) Regulations, 1973, which deals, with the situation when an act of unfair labour practice is likely to be committed but in the present case the above Regulation is not attracted as the respondents management has already issued retrenchment orders of the petitioners and the same have been received and implemented, because the petitioners themselves have produced the letter of retrenchment along with their applications. He has contended that the Legislature while framing the Regulation 32 has visualized two situations of Regulation 32, sub-regulation (1) deals with the matters when an act of unfair labour practice stands committed and sub-regulation (2) deals with the matters when there is an apprehension and likelihood of commission of an unfair labour practice. In the present case as alleged the act of unfair labour practice, if any has already been committed, which has been admitted by the petitioners and therefore, the case of petitioners is now to be dealt under sub-regulation (1) of Regulation 32(2) of NIRC (P&F) Regulations, 1973 and admittedly the services of the petitioners have been retrenched and if it is believed then an act of unfair labour practice has been completed the Court has to consider the changed circumstances as held in PLD 1978 SC

220. While arguing further Mr. Shahid Anwar Bajwa, learned counsel for the respondents has submitted that the respondents management had set up an AC Car Clinic Centre for supervision and maintenance of vehicles of management officers and that Workshop was being run at a rented premises and after closure of the said Workshop the premises has been handed over to the landlord. He submitted that there were 42 employees employed, out of them 37 being temporary and daily wage staff was retrenched from service. Besides there were three supervisors namely M. Naeem, M. Wasif and Shamshad Alam, who submitted their resignations in November, 2008 and there remained only present 5 petitioners whose services have been retrenched on 2-1-2009 and pressing their case, the learned counsel for the petitioners wanted a status quo ante which could not be granted as held in 1997 SCMR 1508, 1970 PLC 671 and 1970 SCMR

491. He further argued that the Workshop is closed and the petitioners have not stated in their applications or their rejoinders filed today that the said workshop is in operation, which shows that they have admitted that the workshop is closed where they used to work. It was contended that if the person has been removed from employment, his remedy lies with Labour Court by filing grievance petition or to avail remedy of this' Bench of Commission by filing a criminal complaint in this behalf or to submit application for amendment of the pleading. In support of his contention Mr. Shahid Anwar Bajwa; learned counsel for the respondents has relied upon a decision passed in case Corn Pak Ltd. v. Corn Pak Employees Union, reported in 1998 PLC

403. He, therefore, has prayed to dismiss the applications.

6. While rebutting the arguments of Mr. Shahid Anwar Bajwa, learned counsel for the respondents Mr. M.A.K. Azmati, learned counsel for the petitioners submitted that this Bench of Commission has power to stop an act of unfair labour practice, which was apprehended by the petitioners and they had filed their petitions before this Bench of Commission. Their petitions were admitted and notices were issued to the respondents but the respondents avoided the service of notices with mala fide intention and they by way of passing retrenchment orders of the petitioners have committed an act of unfair labour practice.

7. I have considered the above contentions of both the learned counsel for the parties and I myself have gone through the applications, objections filed by the respondents, rejoinders filed by the petitioners and the case-law cited by Mr. Shahid Anwar Bajwa, learned counsel appearing for the respondents.

8. It will be advantageous to reproduce Regulation 32 of NIRC (P&F) Regulations, 1973, which reads as under:-- "32(1) Manner of dealing with unfair labour practices.

(1) Where an unfair labour practice has been committed, and the case falls under section 25A, section 34 or section 53, as the case may be, the Commission may deal with the case under that section: Provided that the Commission while awarding punishment under section 53, may also direct the reinstatement of a worker and allow consequential benefits to him. (2) Where a case of unfair labour practice is likely to occur, the Commission may take the following measures:

(a)

(b)

(c) advise, direct or prohibit all or any of the connected persons to do or .refrain from doing any act or to conduct themselves or their affairs in a manner calculated to avoid occurrence of unfair labour practice. (d)

(e) Initiate security, proceedings in order to prevent the occurrence of an unfair labour practice." It means, that where a case of unfair labour practice is likely to occur, the Commission has the jurisdiction to pass prohibitory order and in the instant case the petitioners have themselves produced their retrenchment letters dated 2-1-2009 along with the present applications, which means that they are no more workmen of the respondents-company, therefore, there is no question of commission of unfair labour practice against them. After the action taken, the petitioners should have moved the Labour Court concerned. .

9. The learned counsel appearing for the petitioners has not been able to produce any case-law where the superior Courts had appreciated the grant of stay in similar circumstances.

10. It is an admitted position that the petitioners have been removed from service and in the present situation if the retrenchment orders are suspended, it will amount to status quo ante or issuing a mandatory relief, which cannot be granted under the provision of Regulation 32(2)(c) of NIRC (P&F) Regulations, 1973 as laid down by Full Bench of NIRC in case of Intizar Ahmed v. M.C.B., and others reported 2006 PLC

380. It was held that there is no express power conferred on the Commission to order reinstatement by way of interim relief. The Regulations have statutory basis and force and they do not expressly provide and empowers the Commission to direct the reinstatement of the employee. But such a direction has been made dependent on the Commission's finding if the person, standing trial is found guilty in the criminal proceedings. Such a power of directing reinstatement is not ancillary or incidental to the process of .adjudication but is consequential to finding of guilt. It is only when the Commission has arrived at the conclusion to the guilt of the employer that a further discretion is required to be exercised in the matter directing the reinstatement of the employees. Keeping in view the scheme of the Act and the Regulation there is no power to direct reinstatement either incidental or ancillary. Instead, it appears to be consequential and, therefore, it cannot be exercised ad interim. It is true that the Commission has vast powers under the law to prevent an occurrence of recurrence of unfair labour practice and as clause (g) of subsection (8) of section 25 of I.R.A., 2008 itself shows that Commission has been empowered to take an action in such manner as Prescribed by Regulation under section 31 to prevent an employer or workman from committing an act of unfair labour practice clause (2) of Regulation 32 provides in details the preventive measures which can be taken. On the strength of such powers it is contended that the Commission could direct the reinstatement of the workers while seized with their complaints under section 72 of. I.R.A., 2008 because it was a sort of continuing wrong.

11. In the present case the petitioners have filed applications under Regulation 32(2)(c) of NIRC (P&F) Regulations, 1973 which deals with the acts of unfair labour practice likely to be committed although they have produced the copy of retrenchment order meaning thereby that they have admitted that they have been removed by the respondents. Therefore, the act of unfair labour practice, if proved, has already been committed and completed for which they have remedy of filing of grievance petition before the concerned Labour Court as stated above. Accordingly these applications are misconceived and are not Maintainable.

12. In view of above facts and circumstances and also case,-law referred above I am of the considered view that the petitioners have no case for interim relief. Accordingly, the applications filed by the petitioners are dismissed. H.B.T./6/NIRC Applications dismissed.