1991 PLP 651 (PLC)

MUHAMMAD HUSSAIN ADIL KHATRI, J.

Three Companies namely (1) Karachi Gas Company Limited, (2) Indus Gas Company Limited and (3) Sui Gas Transmission Company Limited, were merged into one by the order of this Court passed on 30-3-1988 in J.M. No. 40 of 1988 and the new Company came to be known as Sui Southern Gas Company Limited. The establishments of the above-merged Companies were termed as Unit `A', Unit `B' and Unit `C' respectively. Each of the Companies had their respective Trade Unions/ Collective Bargaining Agents. After the above merger the petitioner-Union came to be known as that of Unit `C'.

2. The petitioner filed an application under section 22-EE of the Industrial Relations Ordinance, 1969 (hereinafter referred to as the Ordinance) for its determination as Collective Bargaining Unit for Unit `C'.

3. In the meanwhile respondent No. 2, the Registrar, Industrywise Trade Unions N.I.R.C. initiated proceedings on an application riled before him under section 22 of the Ordinance for determination of Collective Bargaining Agent for the new Establishment. The petitioner on receiving notice under section 22(3) of the Ordinance from respondent No. 2, submitted an application pointing out that its application for being determined as Collective Bargaining Unit was pending before respondent No. 1, N.I.R.C. and as such the proceedings under section 22 of the Ordinance if concluded before determination of the petitioner as Collective Bargaining Unit, the application fled by the petitioner under section 22-EE would be rendered infructuous. It appears that such reply of the petitioner has been treated as an indication on its part not to participate in proceedings under section 22 of the Ordinance.

4. The petitioner also filed an application under Order 39, rules 1 and 2, C.P.C. read with section 151, C.P.C., before respondent No. 1, for staying the proceedings commenced by respondent No. 2, under section 22 of the Ordinance till determination of the petitioner as Collective Bargaining Unit.

5. The said application was dismissed by order dated 17-7-1990 by respondent No. 1, on the ground that under 2nd proviso to section 22-EE it had no jurisdiction to grant stay in any case other than the one initiated on reference made by the Federal Government.

6. The petitioner being aggrieved by the said order dated 17-7-1990, has filed this petition. The learned counsel for the petitioner has raised the following contentions before this Court:-- (i) 2nd proviso to section 22-EE of the Ordinance does not bar the jurisdiction of respondent No. 1, to grant stay to the petitioner and even if it does so, such power is available to respondent No. 1 under section 151, C.P.C. (ii) Respondent No. 1, had jurisdiction to grant injunction under Order 39, rules 1 and 2, C.P.C., as under Regulation 19 of the N.I.R.C. (Procedure and Function) Regulations, 1973 (hereinafter referred to as the said Regulation) respondent No. 1, has to follow the procedure prescribed under the Code of Civil Procedure, 1908. Section 22-EE of the Ordinance reads as under:-- "22-EE. Determination etc of Collective Bargaining Unit.

(1) Where the Commission, on an application made m this behalf, by a trade union of workmen or a federation of such trade unions, or on a reference made by the Federal Government, after holding such inquiry as it deems fit, is satisfied that for safeguarding the interest of the workmen employed in an establishment or group of establishments belonging to the same employer and the same industry, in relation to collective bargaining it is necessary, just and feasible to determine one or more collective bargaining units of such workmen in such establishment or group, it may, having regard to the distribution of workers, existing boundaries of the components of such establishment or group, facilities of communication, general convenience, sameness or similarity of economic activity and other cognate factors,-- (a) ........................................ (b) (c) Provided that the .. Provided further that, after the receipt of a reference for determination of a Collective Bargaining Unit, the Commission may stop or prohibit the proceedings to determine Collective Bargaining Agent under section 22 for any establishment or group of establishments which is likely to be affected by a decision under this section:"

7. Section 22-EE (1) of the Ordinance provides that proceedings for determination of one or more Collective Bargaining Units may be made on application made by a Trade Union of Workmen or a Federation of such Trade Unions or on a Reference made by the Federal Government. The legislature has thus itemised the terms `application' and `Reference' in the specific context. But the second proviso makes a provision for stopping or prohibiting the said proceedings only on receipt of a Reference i.e. the Reference made by the Federal Government.

8. On mere reading of the aforesaid provisions, it is clear that the jurisdiction of the NIRC with regard to stopping or prohibiting the proceedings under section 22-EE is limited and can be exercised only on receipt of a Reference to be made by the Federal Government under section 22-EE (1).

9. The above proviso is an exception clause and, therefore, its construction and interpretation is to be confined to its express words and within the terms it creates an exception and no implied intendment of the legislature is capable of being read and found out by Court. For extending the aforesaid 2nd proviso to the proceedings initiated by the Trade Union of workmen or a Federation of Trade Unions, it would be necessary to read the word `application' in conjunction with `Reference'. 1t is again an established principle that no words can be added to extend the scope of the provisions to meet a case for which provision has clearly and undoubtedly not been made.

10. We are, therefore, of the confirmed opinion that the power thus conferred on NIRC cannot be exercised to grant stay in the proceedings commenced on an application filed by the petitioner.

11. The learned counsel relying on Regulation 19 of the said Regulations, has contended that respondent No. 1 can exercise such powers under Order 39, Rules 1 and 2, C.P.C.

12. The said Regulations have been made by the NIRC in exercise of powers conferred by section 22-F of the Ordinance.

13. The language of the said Regulations provides that the Code of Civil Procedure would apply as far as it can be made applicable in the proceedings before the Commission. These words are of far-reaching consequence in the context of the language of the aforesaid situation and has made a provision for it and as such the legislative intent is to be given effect to and respected. The said Regulation is a sub-legislative instrument and cannot be read to extend the jurisdiction of the' Commission conferred by the Ordinance, by invoking Order XXXIX or section 151, C.P.C. Reference may be made to 1989 S C M R 1892 Pakistan Burmah Shell Ltd. v. Mrs. Nasreen Irshad and others. Reference may be made to P L D 1957 S C 219 (In the matter of Reference by the President of Pakistan under Article 162 of the Constitution of Islamic Republic of Pakistan).

14. The learned Advocate of the petitioner urged that section 151, C.P.C., is always available for passing such orders as would advance the cause of justice. He has placed reliance on AIR 1962 SC 527 (Manoher Lal Chopra v. Rai Bahadur Rao Raja). In this authority, scope of section 151, C.P.C. came under consideration. After referring to case-law on the subject, the rule deducted is that the inherent powers are to be exercised by the Courts in very exceptional circumstances, for which the Code lays down no procedure. Learned counsel also relied on PLD 1989 Karachi 635 (Nazar Muhammad v. Ali Akber) in which after survey and analysis of multitude of reported cases on the scope of inherent powers following principles were deduced:-- "(1) The inherent power of a Court is in addition to and complementary to the powers expressly conferred under the Code. (2) But that power will not be exercised if its exercise is inconsistent with, or comes into conflict with, any of the powers expressly or by necessary implication conferred by the other provisions of the Code. (3) if there are express provisions exhaustively covering a particular topic, they give rise to a necessary implication that no power shall be exercised in respect of the said topic otherwise than in the manner prescribed by the said provision. (4) Whatever limitations are imposed by construction on the provisions of section 151 of the Code, they do not control the undoubted power of the Court conferred under section 151 of the Code to make a suitable order to prevent 'the abuse of the process of the Court." The other authority relied upon i.e. PLD 1977 SC 599 (Conforce Ltd. v. Syed Ali Shah) also specifically lays down that section 151, C.P.C. cannot be invoked to defeat the provisions of C.P.C. and similarly it cannot be invoked to defeat the clear legislative intendment expressed in the Ordinance.

15. Thus, the case-law relied upon by the learned counsel of the petitioner do not advance his case in any manner.

16. It was urged that respondent No. 1 had earlier on his application granted injunction in these very proceedings under section 22-EE of the Ordinance and thus owned the jurisdiction and as such ought to have maintained consistency instead of disarming himself. Respondent No. 1 has specifically observed in the impugned order that while passing the said order, dated 28th December, 1989, he had not closely examined the relevant provisions.

17. We, therefore, see no reason to interfere in the impugned order. The petition is, therefore, dismissed with no order as to cost. A.A./S-741/K Petition dismissed.