This application under section 51(a) of the I.R.O., 2002 filed by Employees Old Age Benefits Institution alleging disobedience of interim A prohibitory order dated 3-6-2003 passed by this Bench of Commission on application under Regulation 32(2)(c) of N.I.R.C. (P&F) Regulations, 1973 which was filed along with petition under section 49(4)(e) of the I.R.O., 2002 bearing No,4A(50)/2003-K, by the complainant before this Bench of Commission.
2. Heard Mr. Shakil Ahmed, learned advocate, for the applicant and Mr. Haider Imam Rizvi, learned Advocate for Respondents Nos.2 to 5 and Syed Mubashir Razi Jafri, respondent No, I in person.
3. Mr. Shakil Ahmed, learned advocate for the appellant has contended that the contemners have committed contempt of Court by disobeying the interim prohibitory order dated 3-6-2003.
4. Mr. Haider Imam Rizvi, learned advocate for the respondents Nos.2 to 5 has contended that by virtue of S.1 (4)(f) of the I.R.O, 2002 the provisions of I.R.O, 2002 do not apply to the EOBI as such the main petition bearing No,4A(50)/2003-K filed by the complainant could not "have been entertained by this Commission and interim prohibitory order passed by his Bench of Commission dated 3-6-2003 being without jurisdiction no contempt application can lie alleging disobedience of the said order which is deemed to be void. In support of his contention he has placed his reliance on PLD 1966 SC 802 wherein Full Bench of Hon'ble Supreme Court at page 812, observed that if, for instance, it is eventually found that the suit was wholly outside the jurisdiction of the Civil Court, then the injunction order would also have been one without any validity and its disobedience could not be visited with punishment in contempt proceedings by the High Court, Mr. Haider Imam Rizvi, learned advocate for respondents Nos.2 to 5 has also referred PLD 1992 Peshawar 130 wherein at page 135 it was observed that the suit by itself being not maintainable, and the learned trial Court as such having no jurisdiction, the injunction ex consequent issued by the learned Civil Judge Mansehra had no binding effect on the petitioner nor for that matter on respondent No,2.
5. Further it is contended by Mr. Haider Imam Rizvi, learned advocate for respondents Nos.2 to 5 that Annex, P/1 filed with counter affidavit by the respondents Nos.2 to 5 is communication of the order passed by the learned RITU by the Deputy Registrar through his letter dated 12-11-2002, whereby the Secretary General, EOBI Employees Federation of Pakistan in case of change submitted .For approval was informed that by virtue of clause (t) subsection (4) of section 1 of amended Ordinance, 2002 the department of the applicant has been included from the purview of I.R.O.
2002.
6. Next it is contended by Mr. Haider Imam Rizvi, learned advocate for the respondents Nos.2 to 5 that besides this Annex. P/1 to the counter affidavit there is a letter dated 3-4-2003 containing legal opinion of Mahmood Alam Soomro, Director (Law) of the applicantInstitution addressed by him to Mr. Syed Zaki Muhammad, Advocate to the effect that since the N.I.R.C. Has refused to entertain the request of EOBI Employees Union for registration because of promulgation of I.R.O., 2002 there left no alternative except approaching the Hon'ble High Court and to move an application for injunction before the Hon'ble High Court of Sindh. It is contended that the applicant Institution also has filed civil suit No,643 of 2003 before the Hon'ble High Court of Sindh, at Karachi, Annex-D to the parawise reply submitted by Syed Mubashir Razi Jaffari, respondent No,l. In the said suit, in reply to the objections regarding the maintainability of suit because of bar contained in section 16 read with section 33 of the I.R.O., 2002 raised by the Court, Mr. Syed Zaki Muhammad learned advocate for the appellant made clear admission that bar contained under section 15 of I.R.O, 2002 do not apply to the establishment for payment of Employees Old Age Pension or workers welfare as such the Hon'ble High Court has the jurisdiction to proceed with the matter, as such the stay was granted in the said suit on 1-7-2003, when on similar facts application under section 49(4)(e) of the I.R.O., 2002 and application under Regulation 32(2)(c) of N.I.R.C. (P&F) Regulations, 1973 were pending and interim prohibitory order was obtained on 3-6-2003 and this fact was concealed by advocate for the complainant before the Hon'ble High Court Sindh. It is submitted that the suit is still pending before the Hon'ble High Court of Sindh, at Karachi.
7. Mr. Haider Imam Rizvi, learned advocate for respondents Nos.2 to 5 next has contended that Constitution Petition, which was filed by respondents challenging the interim prohibitory order dated 3-6-2003 passed by this Bench of Commission was disposed of by Hon'ble High Court of Sindh, Karachi by order dated 2-9-2004 as infructuous on making statement of Mr. Syed Zaki Muhammad advocate for the applicant that he has withdrawn the main petition pending before the N.I.R.C. It is contended that this fact was concealed by Mr. Syed Zaki Muhammad advocate for the applicant that contempt application filed by him was pending before this Bench of Commission. In support of his contention that main case alleging unfair labour practices withdrawn, the contempt application would not exist thereafter. Mr. Haider Imam Rizvi, learned advocate for the respondents Nos.2 to 5 has cited case of Irfan Hussain v. Messrs United Lines agency reported in 1987 PLC 262, wherein at page 263 the learned Chairman National Industrial Relations Commission held that considering the fact that the case No,4A (124)/85 had been withdrawn, none of the ingredients of contempt under, section 22-C of I.R.O. 1969 can be said to exist. I, therefore, see no good reason to proceed against the respondents for contempt, as regards the main case No,4A(124) of 1985.
8. Syed Mubashir Razvi Jafri, contemner/respondent No,1 adoptedthe same arguments that advanced by Mr. Haider Imam Rizvi, learned advocate for respondents Nos.2 to 5.
9. It is admitted position that main petition under section 49(4)(e) of I.R.O., 2002 and accompanying stay application under Regulation 32(2)(c) of NIRC (P&F) Regulations, 1973 bearing No,4A(50)/2003-K, 24(50)/2003-K has been withdrawn by the complainant. Interim order dated 3- 6-2003 of which the disobedience is alleged in the present complaint, was challenged in the Constitution Petition by the respondent/contemners which was disposed of on 2-9-2004 by Hon'ble High Court of Sindh, Karachi, having become infructuous as Mr. Syed Zaki Muhammad, advocate for the complainant had made statement that he has withdrawn the main petition under section 49(4)(e) of the I.R.O., 2002 on 3-7-2003. The Deputy Registrar of this Commission by his letter dated 12-11-2002 has communicated the order of learned RITU to the Secretary General, EOBI Employees Federation of Pakistan that the change submitted for approval could not be approved as by virtue of clause (f) of subsection (4) of section I of Industrial Relations Ordinance, 2002 EOBI is excluded from its purview. Such admissions also have been made by Mr. Syed Zaki Muhammad, learned advocate for the applicant while replying the objections before Hon'ble High Court of Sindh in civil suit No,643 of 2003 wherein he obtained interim prohibitory order. Even otherwise no documentary evidence has been filed by the applicant to substantiate the allegation made in the application that the persons named in the application as contemners have disobeyed the interim prohibitory order dated 3-6-2003 passed by this Bench of Commission.
' In view of above facts and circumstances the contempt petition cannot proceed, which is accordingly dismissed.
Contempt .