2005 PLP 1 (PLC)

SAIYED SAEED ASHHAD, CJ.

In this Constitutional Petition the Petitioner has sought the following reliefs:-- "It is therefore, prayed that this Hon'ble Court may be pleased to set aside the orders dated 7-6-2003 having been passed to set aside the others dated 7-6-2003 having been passed without jurisdiction and lawful authority. Stay/suspend the operation of impugned orders dated 7-6-2003 and 7-8-2003. Any other relief which this Hon'ble Court may deem fit." The brief facts necessary for disposal of this Constitutional Petition are that Respondent No.2; Rashid Ali, serving in the employment of the Petitioners, was ordered to be transferred from its Karachi Office to Islamabad Office. The said Respondent No.2 moved an application under section 49(4)(e) of the Industrial Ordinance, 2002, alleging victimization on the ground of his activities as an active member of the Workers Union in the House Building Finance Corporation: He further submitted that his transfer was not bona fide but was by way of harassment and victimization amounting to unfair labour practice on the part of the employers, i.e. Management of the Petitioner. Member N.I.R.C Karachi Bench, on such application, passed an interim order suspending the operation of the impugned order of transfer dated 16-5-2003. Thereafter, application for suspension of the operation of the order was heard on merits and the interim order of suspension was confirmed by the Member, vide order dated 7-8-2003. Feeling aggrieved and dis-satisfied with the above order, the Petitioners have assailed the same by way of this Constitutional Petition. We have heard the arguments of Mr. Choudhry Rasheed Ahmed, on behalf of the Petitioners and Mr. M.A.K. Azmati, on behalf of respondent, No.2. Learned counsel for the Petitioners submitted that Member, N.I.R.C., without deciding the issue relating to his jurisdiction entertained the said, application, passed an interim order and thereafter confirmed the same though in view of section 2A, the jurisdiction of N.I.R.C. was ousted and the question of transfer which falls within the scope of terms and conditions of a Civil Servant could not have been agitated before the Service Tribunal irrespective of allegation of unfair labour practice. He further submitted that it was incumbent for the Member, N.I.R.C to decide the issue of jurisdiction in view of the observations of the Supreme Court in the case of Malik Nazar Hussain v. National Bank of Pakistan, reported in 2003 PLC

405. Mr. Choudhry Rasheed also drew our attention to the proviso to section 49 (4)(e) of I.R.O. 2002, according to which the Commission has been prohibited from granting interim relief against any action falling within the scope of section 63, which deals with unfair labour practice on the part of the employer, unless an industrial dispute existed between the workers/trade union on the one hand and the management on the other hand. In addition to the above, he also submitted that the pronouncement of the Supreme Court in the case of I.A. Sherwani and others v. Government of Pakistan and others, reported in 1991 SCMR 1041, to the effect that it was not open to a civil servant to oust the jurisdiction of the Federal Service Tribunal by adding the ground of violation of a fundamental or legal right and, even in such circumstances, the Special Tribunal constituted under the law would continue to have jurisdiction to decide the issue of violation of alleged fundamental right, provision of a Statute or principle of law. Mr. Azmati, on the other hand, supported the order of the Member, N.I.R.C, and submitted that once a worker had raised the issue of unfair labour practice then N.I.R.C. would be the sole forum to decide the same and jurisdiction of the Service Tribunal would be ousted. With regard to the contention that the proviso to section 49(4)(e) of I.R.O. 2002 puts prohibition on the power of the Commission to grant an interim order of stay, he submitted that an industrial dispute was in existence between Respondent No.2 and the Petitioners as soon as Respondent No.1 issued the illegal order of transfer of the Petitioner. With regard to the pronouncement made by the Supreme Court relative to the ouster of jurisdiction of a Tribunal/forum, he submitted that a pronouncement by any Court cannot render any provision of a Statute as surplus or redundant and elaborated that if the said pronouncement was applied in the present case then the provisions of I.R.O. 2002 relating to the powers of N.I.R.C. to entertain matters relating to unfair labour practice by the employers and the employees would be rendered nugatory, surplus and redundant. He further submitted that this would be against the principles of interpretation of statute that not a single word in a statute was to be treated as surplus, redundant or nugatory and in view of this principle the N.I.R.C. would continue to exercise jurisdiction even in matters falling within the scope of terms and conditions of the workers if there was allegation of unfair labour practice, mala fides or ulterior motive. We are not in agreement with this contention inasmuch as the Supreme Court while making the above pronouncement had taken into consideration this very contention. On the contrary, the Supreme Court observed that a civil servant would be circumventing and defeating the provision of law, if in addition to the' grievance relating to the terms and conditions of service, he adds an additional ground of violation of a fundamental or legal right so as to take it out of the scope of special forum and to agitate the issue before the normal forum then he would be resorting to measures rendering the provision of the statute as redundant and surplus. The ouster of jurisdiction in view of the' pronouncement of the Supreme Court will neither be against the principle `of interpretation of statutes nor will be rendering any provision of statute as redundant, nugatory or surplus. Legislation has full authority to pass any law or to make amendment in C any law whereby class of persons may be precluded from having recourse to a particular forum or Tribunal and approach another forum or Tribunal. The Legislature by incorporating' section 2A in the Service Tribunals Act declared all employees/workers of autonomous or semi autonomous bodies; corporations, establishments and companies controlled, managed or run by the Federal Government, as civil servants thus precluding them from invoking the jurisdiction of N.I.R.C. in any matter relating to the violation of their terms and conditions of service. Invocation of jurisdiction of N.I.R.C. by such employees/workers for redress of grievance relating to violation of terms and conditions for their service coupled with the allegation of violation of a fundamental or legal right will render the provisions of section 2A of the Service Tribunals Act as redundant, surplus and nugatory. With regard to the contention that the N.I.R.C. and the provisions of I.R.O. 2002 dealing with the unfair labour practice would be rendered as surplus, redundant, and of no avail, it is to be noted that the N.I.R.C. cannot exercise jurisdiction to adjudicate upon the cases of all the employees/workers declared as civil servants in view of section 2A of the Service Tribunals Act. However, its Jurisdiction to adjudicate upon the cases of unfair labour practice" filed by the employees/workers of privately owned, managed and run establishments, companies, and bodies remains intact. Therefore, neither the N.I.R.C. nor the Sections of the I.R.O. 2002 dealing with the establishment, powers, functions of the N.I.R.C. and the unfair labour practices will be rendered as surplus, redundant or nugatory. With regard to the observation made by the Supreme Court in the case of Malik Nazar Hussain supra that it was incumbent for the N.I.R.C. to examine whether unfair labour practice had been committed by the employer and merely on the averment of the worker, in his application jurisdiction should not have been assumed, it is to be observed that the observation has no application to the facts and circumstances of the present case as the question of examining the possibility of commission of unfair labour practice by the N.I.R.C. would arise only it had jurisdiction to entertain an application of a civil servant relating to violation of any of the terms and conditions of a civil servant. It is to be observed that a Division Bench of this Court in its Judgment dated 11-9-2002 in the case of Trustees of the Port of Karachi v. Abdul Rasheed had pronounced that an employee working in the autonomous, semi-autonomous, statutory, Government managed, controlled or run establishment, was civil servant within the meaning of section 2A of the Service Tribunals Act and irrespective of the allegation of unfair labour practice in case of his dismissal, removal, retirement or any other element relating to the terms and conditions of service, he was required to have recourse to the Service Tribunal and the jurisdiction of the N.I.R.C. to entertain such matters on the allegation of unfair labour practice was ousted. In the case of Multilines Associates v. Ardeshir Cowasjee and others, reported in 1995 SCMR 362, the Supreme Court declared, a Division Bench of this Court would not act contrary to the pronouncement of a judgment of an earlier Division Bench on the same issue and if the latter Division Bench did not agree with the pronouncement of the earlier Division Bench, then the only option available to it was to ask for formation of a larger Bench. We are in agreement with the pronouncement of the earlier Division Bench, and there is no issue or dispute which requires to be referred to a larger Bench. Upon the above discussion, it is established beyond any doubt that the Member, N.I.R.C. had no jurisdiction to entertain the Application under section 49(4)(e) of the Industrial Relations Ordinance, 2002, filed by Respondent No.2 and he has assumed jurisdiction which did not vest in him legally. All the proceedings going on before the Member N. L.R.C. are without jurisdiction and of no legal effect. Accordingly, this Constitutional Petition is allowed. The impugned orders are set aside and the proceedings pending before the Member, N.I.R.C. are declared to be illegal and without lawful authority and shall stand dismissed. H.B.T./H-28/K Petition allowed.