' SHABBIR AHMED, J.---The petitioner has invoked the jurisdiction of this Court under Article 199 of the Constitution, for the relief that unilateral assumption of jurisdiction by the respondent No.1 and the ex parte order dated 3-12-2003 is illegal and contrary to the provisions of law and without lawful authority and of no legal effect.
2. The facts are not disputed, the same can be summarized as follows:-- ' The petitioner is a Public Limited Company, controlled by Federal Government. The respondents Nos.2 to 4 are its employees, whereas respondents No.6 is the Industry-wise Trade Union in petitioner company. The respondents Nos.2 to 5 were guilty of certain acts prejudicial to and subversive of discipline and were served with charge-sheet dated 13-11-2003. The allegations against respondents Nos.2 to 4 are common which are reproduced as follows:-- ' STATEMENT OF ALLEGATIONS 1 . On 12th November 2003, at about 9-30 a.m. You gathered a workers mob at Site Office while the MD, SGM (D) and GM (HR) were visiting SSGC Site Office. You instigated and agitated the workers mob and on non-core issues like routine transfer of the employee, raised aggressive and threatening slogans, used abusive and filthy language/words including such {{URDU TEXT}} You did this while MI was visiting Site Office and being briefed by GM (D), Site.
2. You misled and provoked the workers due to which peaceful atmosphere of the Company was disrupted and also halted for over one hour, the briefing which was being giving to the MD.
3. Due to the gathering of approximately 100 workers who left their place of work, normal work of the Company was also disturbed, resulting in illegal cessation of work.
4. As General Secretary of CBA Union, instead, of showing responsible attitude you insulted and used derogatory remarks against the Management.
5. When MD intervened you became so aggressive, rude and threatened him for'dire consequences.
6. Your above acts are clearly prejudicial to good order and service discipline and therefore, amount to gross misconduct within the meaning of section 3(1)(b) read with section 2(b) of the Removal from Service (Special Powers) Ordinance, 2000.
3. An Inquiry Committee comprising of Mr. Mansur Ahsan, DGM (HR-SP). Mr. Deedar Hussain, DGM (Billing)-H.Q. And Mr. Abdul Rasheed, CM (IR), H.Q. Was appointed. The respondents Nos.2 to 5 were served with Inquiry Notice dated 11-12-2003, they filed petition under section 49(4)(e) of the Industrial Relations Ordinance, 2002 (in short-the Ordinance) read with NIRC (P&F) Regulation, 1973 before the respondent No.1, who assumed the jurisdiction and required the petitioner to file comments on petition and also passed an ex parte order dated 3-12-2003 the operative part reads:-- "In the meanwhile the respondents are directed not to pass final order on the charge-sheets and statement of allegations dated 15-11-2003 against the petitioners till the next date. The respondents are however, allowed to continue and complete the inquiry proceedings against the petitioner but may not announce the final result."
4. Hence the present petition.
5. On notice, the respondents Nos.2 to 5 have filed counter affidavit, whereby raised, inter alia, the pleas that the issue of jurisdiction is subjudiced before the competent forum and the petitioner is premature. The acts of unfair labour practice committed by the petitioner company were brought before the Member of NIRC with well based apprehension as to likelihood of commission of further acts of unfair labour practice as to removal/dismissal from service by applying Ordinance, 2000 just to victimize the officers of the Union for their legitimate trade union activities. The petitioner have itself filed a case, alleging acts of unfair labour practice against the union and its office bearers seeking prohibitory orders, thus the petitioner company is taking, contradictory pleas and stand by approbating and reprobating when availing the same forum by filing cases one after the other against the union and its office bearers and obtaining prohibitory orders and when the union sues the company for acts of unfair labour practice, it takes objection to its jurisdiction alleging that the Federal Service Tribunal has the jurisdiction, which is malicious and vexatious.
6. We have heard Mr. Mahmood Abdul Ghani, learned counsel for the petitioner and Mr. Gohar Iqbal, learned counsel for the respondents Nos.2 to 6.
7. Contention of learned counsel for the petitioner was that by virtue of section 2-A Service Tribunals Act the workers/servants of the petitioner have been treated as "Civil Servant" for the purpose of providing single forum for adjudication of their grievances, touching the terms and conditions of the employment. He referred the statement of objects and reasons for insertion of section 2-A in Service Tribunals Act, 1973, by the Service Tribunal (Amendment). Act, 1997, to avoid multiplicity of fora for dealing with service appeals of the officers and employees of the statutory bodies, and employees of authorities, corporations, bodies, and organizations set up or controlled by the Federal Government. The statement of objects and reasons are as follows:-- "There is a multiplicity of fora for dealing with service appeals of the officers and employees of the statutory bodies, and employees of authorities, corporations, bodies, and organizations set up or controlled by the Federal Government. It is appropriate that employees of such bodies and authorities are provided right of appeal before the Service Tribunal established under the Service Tribunals Act, 1973 under the existing provisions of the Service Tribunals Act, 1973, the Tribunals cannot hear appeal against interim orders made by the departmental authorities. Lack of jurisdiction in that regard some times, leave the employee without remedy. It is appropriate that the Tribunals should have jurisdiction to hear appeals even against ad interim order."
' Elaborating his contention, it was contended by him that the effect of section 2-A came under discussion before the High Court and the apex Court. The settled view of the superior Court is that by virtue of insertion of section 2-A, no forum has jurisdiction except the Service Tribunal for redressal of the grievance of the employees touching the terms and conditions of service.
8. Section 2-A was brought on statute book by the Service Tribunals (Amendment) Act, 1997, which reads as under:-- "2-A. Service under certain corporation, etc., to be service of Pakistan---Service under any authority, corporation, body or organization established by or under a Federal Law or which is owned or controlled by the Federal Government or in which the Federal Government has a controlling share or interest is hereby decaled to be service of Pakistan and every person holding a post under such authority, corporation, body or organization shall be deemed to be a civil servant for the purposes of this Act."
9. Mr. Mahmood Abdul Ghani in support of his contention has urged that the assumption of jurisdiction by the respondent No.1 in the matter is coram nonjudice and the only forum is the Services Tribunal in the matter in respect of a grievance touching the terms and conditions of the service and his further contention was that the disciplinary action emanates from the terms and conditions of the services, he placed his reliance on the judgment dated 29-2-2000 in (1) C.P. No.D- 1026/1999, (Ehtishamuddin Siddiqui and others v. Federation of Pakistan and another), (2) C.P.
No.D-718 of 1999 (Syed Ahmed Naqvi v. Member NIRC and others), (3), C.P. No.373 of 2000 (Trustees of the Port of Karachi v. Member, NIRC and another), judgment dated 8-11-2002, (4) Sui Southern Gas Co. Ltd v. Member National Industrial Relations Commission and another (2002 PLC 80), (5) Mr. Azhar Jameel v. Federation of Pakistan and others (SBLR 2002 Sindh 129) and (6) Searle Pakistan Limited v. Full Bench, National Industrial Relations Commission (2002 PLC 87).
10. In the first case, the Division Bench of this Court, consisting of one of us (Mr. Justice Shabbir Ahmed), refused to exercise the jurisdiction under Article 199 in view of bar of jurisdiction under Article 212 of the Constitution with the following observations:-- "It may be mentioned that section 2-A has been inserted in the Service Tribunals Act, whereby the said statute is extended to new territories or class of persons, who were originally not covered by it.
By such insertion, any person serving under any Authority, Corporation Body or Organization established by or under Federal Law or which is owned or controlled by the Federal Government or in which the Federal Government has controlling share of interest is declared to be service of Pakistan and every person holding post under such Authority, Corporation, Body or Organization shall be deemed to be civil servant for the purpose of this Act. There can be no escape from the conclusion that only forum for adjudication of dispute in respect of terms and conditions of service of employees of Authority, Corporation, Body or Organization owned or controlled by the Federal Government has been changed and in respect of such dispute Service Tribunals established under the Service Tribunals Act, 1973 shall have exclusive jurisdiction to entertain such dispute as provided under section 4 of the Service Tribunals Act of 1973."
' In second case, the learned Member of NIRC refused to assume the jurisdiction by dismissing the application under section 22-A (8)(G) of I.R.O., 1969 read with Regulation 32(2) of NIRC (P&F)
Regulations, 1973. The petitioner challenged the order in Constitutional jurisdiction, taking the plea that the petitioner was a workman and therefore, against the termination order the only remedy available to him was before the NIRC. The plea taken by the respondents was that the status of the petitioner may be of a workman but for the purpose of remedy, after insertion of section 2-A with effect from 10-6-1997, was a "civil servant" and thus against the order of termination of his service the only forum available to him was the Service Tribunals and not before the NIRC. The Division Bench of this Court dismissed the petition following the dictum of apex Court is Syed Aftab Ahmed and others v. K.E.S.C. And others (1999 SCMR 197), wherein the apex Court examined the status of employees/workman working under any authority, corporation; body or organization covered by section 2-A of the Service Tribunals Act, 1973, the observations were: "A perusal of the above quoted newly enacted section 2-A indicates that the service under any Authority, Corporation, Body or Organization established by or under a Federal Law or which is owned or controlled by the Federal Government or in which the Federal Government has a controlling share or interest has been declared to be service of Pakistan. It has also been provided that every person holding a post under any such Authority, Corporation, Body or Organization shall be deemed to be in civil service for the purposes of this Act i.e. The Service Tribunals Act, 1973. In our view, it is not necessary for any employee working in any of the organizations covered by section 2- A that he should also come within the ambit of definitions of the "civil servant" given in section 2(b) of the Act of 1973. The employees of the various Authorities, Corporations etc. Mentioned in section 2-A have been treated in the service of Pakistan for limited purpose for providing remedy by way of appeal to them against an order of which they may feel aggrieved."
' In third case, in similar circumstances, the Trustees of the Port of Karachi challenged the observations made by the Members of the NIRC with regard to age of the respondent, while allowing withdrawal of the application under sections 22-A(8)(g) and 32(2) of the Industrial Relations Ordinance, 1969 and the plea taken on behalf of the respondents was recorded as follows:-- "The contention of Ch. Rasheed that charges of unfair labour practice were levelled against the petitioner which could be enquired investigated solely by respondent No. 1 . Is without any substance in view of the principle that a civil servant would not be allowed to bypass the jurisdiction of the Service Tribunal by adding/raising a ground of violation of fundamental rights as propounded by the Supreme Court in the case I.A. Sherwani, reported in 1991 SCMR 1041. If the Service Tribunal in exercise of its jurisdiction can deal with the issue of violation of fundamental rights then it can certainly deal with the issue of unfair labour practice while proceeding with an appeal of a civil servant against violation of his terms and conditions of service."
' In Sui Southern Gas Co. Ltd. (supra), the petition was allowed by recording that "the only contention urged by the counsel for petitioner is that the order passed by respondent No.1 is without any lawful authority as the respondent No.2 is a workman and after insertion of section 2-A of Service Tribunals Act, 1973 the remedy if any lies before Service Tribunal and not before the NIRC.
In support of his above contention he has placed reliance on the case of Syed Aftab Ahmed and others v. K.E.S.C. And others (1999 SCMR 197) in which Hon'ble Supreme Court has held that section 2-A was retrospective in its operation being a law relating to procedure as such all proceedings pending before any forum other than the Federal Service Tribunal in respect of departmental order made before insertion of the said section could no longer continue and the only remedy was to approach the Service Tribunal. The same view was also followed by Hon'ble Supreme Court in the case of Gulzeb Hussain v. Sui Northern Gas Pieplines Ltd. (2000 SCMR 959).
' In Azhar Jameel's case, the following view was expressed:-- "It is a settled principle of law that objections/issues with regard to mala fides coram non judice, order ultra vires and the illegality of the. Authority issuing the order can be raised before a Service Tribunal and an aggrieved civil servant cannot bypass the jurisdiction of the Service Tribunal by adding the aforesaid grounds. In support of the above proposition reliance is placed on the case of Asadullah Rashid v. Haji Muhammad Muneer and others, reported in 1998 SCMR 2129."
' In last case, the following observations were made:-- "A bare perusal of section 15 reproduced hereinabove is sufficient to establish that the management of the petitioner in initiating disciplinary proceedings against respondent No.3 on the basis of the inquiry report submitted by the Inquiry Officer was not guilty of committing unfair labour practice as defined in section 15 of the Ordinance. In the circumstances, exercise of jurisdiction by respondents Nos.l and 2 under section 22-A (8)(g) of the Ordinance was beyond the scope of their jurisdiction and both of them had acted without jurisdiction in taking' cognizance of the application filed by respondent No.3."
11. Lastly, it was contended by the learned counsel for the petitioner that if an . Order or proceedings are patently without jurisdiction, High Court can issue writ in exercise of its jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, to enforce his submission, he referred the case of Malik" Nazar Hussain v. National Bank of Pakistan (2004 SCMR 28).
12. Learned counsel for the respondent, inter alia, raised the following contentions.
' That the NIRC has the jurisdiction in respect of unfair labour practice either on the part of the employee or the employer. His contention was that the jurisdiction of NIRC could be invoked in a matter which is beyond the pale of section 4 of the Service Tribunal Act.
' Elaborating his contention, he maintained that only those matters could be brought before the Service Tribunal which are enumerated in section 4 of the Act and his further contention was that the petitioner himself have invoked the jurisdiction of NIRC alleging unfair labour practice on the part of the Union, therefore, the petitioner cannot be approbate and reprobate.
13. Section 4 of the Service Tribunals Act gives right to a civil servant to file an appeal aggrieved by any order whether original or appellate in respect of any terms and conditions of his service within the period mentioned therein.
14. The ratio of the cases referred to above can be summarized as follows:--
(1) That by virtue of insertion of section 2-A any person serving under any authority, corporation, body or organization established by or under a Federal Law or which is owned or controlled by the Federal Government or in which the Federal Government has a controlling share or interest is declared to be service of Pakistan and every person holding a post under such Authority, Corporation, Body or Organization shall be deemed to be a civil servant for the purposes of this Act.
(2) That the only forum for adjudication of dispute in respect of terms and conditions of service of employees of Authority, Corporation, Body or Organization owned or controlled by the Federal Government has been changed and in respect of such dispute Service Tribunals established under the Service Tribunals Act, 1973 shall have exclusive jurisdiction to entertain such dispute as provided under section 4 of the Service Tribunals Act.
(3) That a show-cause notice and initiation of proceedings under the disciplinary rules against a civil servant does not furnish him a cause for invoking the jurisdiction of a Tribunal or a Court.
(4) The matter of inquiry in respect of the allegations not attracting the clause (d) of section 63 of the Ordinance, 2001 cannot be brought before the NIRC under section 49(4)(e) of the Ordinance, 2001.
(5) The NIRC cannot assume jurisdiction to entertain a petition without examining whether the employee has been made victim of "unfair labour practice" in accordance with the provisions of section 63 of the Ordinance.
15. It was contended by the respondents' counsel that the respondent union had brought the Charter of Demand and during the pendency of the demand, the respondents Nos.2 to 5 were served with charge-sheet, they are office bearers, as such, the case of unfair labour practice is made out and the respondents Nos.2 to 5 have rightly invoked the jurisdiction of the respondent No.1 .
16. Unfair labour practices on the part of employers are enumerated in section 63 of the Ordinance, which are synonymous to section 15 of the repealed Ordinance 69, which are as follows:-- "63. Unfair labour practices on the part of employers.---(1) No employer or an association of employers and no person acting on behalf of either shall--
(a) impose any condition in a contract of employment seeking to restrain the right of a person who is a party to such contract to join a trade union or continue his membership of a trade union; or
(b) refuse to employ or refuse to continue to employ any person on the ground that such person is or is not, a member or office-bearer of a trade union; or
(c) discriminate against any person in regard to any employment, promotion, condition of employment or working condition on the ground that such person is or is not, a member or office- bearer of a trade union; or
(d) dismiss, discharge, remove from employment or transfer a workman or injure him in respect of his employment by, reason that the workman--
(i) is or proposes to become a member or office-bearer of a trade union; or
(ii) participates in the promotion, formation or "activities of a trade union";
(e) induce any person to refrain from becoming, or to cease to be a member or office-bearer of a trade union, by conferring or offering to confer any advantage on, or by procuring or offering to produce any advantage for such person or any other person; or
(f) compel or attempt to compel any office-bearer of a collective bargaining agent to arrive at a settlement by using intimidation, coercion, pressure, threat, confinement to a place, physical injury, disconnection of water, power or telephone facilities or by such other methods; or
(g) interfere with or in any way influence the balloting provided for in section 20; or
(h) recruit any workman during the period of notice of strike under section 31 or during the currency of a strike which is not illegal except where the Conciliator has, being satisfied that complete cessation of work is likely to cause serious damage to the machinery or installations, permitted temporary employment of a limited number of workmen in the section where the damage is likely to occur; or
(i) close down the whole of an establishment in contravention of Standing Order 11A of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (West Pakistan Ordinance No.VI of 1968); or
(j) commence, continue, instigate or incite other to take part in, or expend or supply money or otherwise act in furtherance or support of, an illegal lock-out."
17. The question is whether the charge-sheet and statement of allegations attract the clause (d) referred to above. The statement of allegations with charge-sheet served on the respondents Nos.2 to 5, have been reproduced in para 2 above. There is no such allegation that they are being proceeded with as they propose to become a member or office-bearer of a trade union or participate in the promotion, formation or activities of a trade union.
' None of the allegations of the charge-sheet attracts the "unfair labour practice". Mere "charge- sheeting" or show-cause notice and initiation of proceedings under the disciplinary rules against a civil servant does not furnish him a cause for invoking the jurisdiction of a Tribunal or a Court. It is a settled principle of law that a civil servant would not have any cause of action to challenge a show-cause notice and the inquiry proceedings initiated pursuant to the show-cause notice as ruled in Azher Jameel v. Federation of Pakistan (2002 PLC (C.S.) 718). Shagufta Begum v. The Income Tax Officer, Circle XI, Zone-B, Lahore (PLD 1989 SC 360) is the pronouncement of the apex Court, wherein the Supreme Court ruled that a show-cause notice did not furnish a ground to an aggrieved party to invoke the jurisdiction of a Court/Tribunal and the proper forum for him was to submit a reply thereto and to fact the consequent proceedings, if initiated.
18. The learned counsel for the respondent, on the last leg, contended that apex Court in Malik Nazar Hussain (supra) ruled that the NIRC has the jurisdiction in respect of the unfair labour practice. In above case NIRC assumed the jurisdiction in respect of the individual grievance, who could have challenged the dismissal before the Labour Court by following the procedure of grievance notice as laid down in section 25-A of the Industrial Relations Ordinance, 1969. The petition was allowed. The respondent bank filed appeal before the Full Bench of the NIRC and also filed the petition. The petition was allowed by holding. That the impugned order to be completely devoid of jurisdiction and without lawful authority. The plea was raised that NIRC assumed the jurisdiction, for the reason that petitioner was made victim of unfair labour practice by the employer in accordance with the provisions of section 15 of the Industrial Relations Ordinance. In this background the apex Court ruled that "we are inclined to hold that NIRC has no jurisdiction to entertain the petition on behalf of the petitioner, without examining whether he has been made victim of unfair labour practice in accordance with the provisions of section 15 of the Industrial Relations Ordinance, 1969, therefore, assuming of the jurisdiction by the Chairman, NIRC was illegal, as such the High Court was quite competent to entertain writ petition filed by the National Bank, irrespective of the fact that it has also filed appeal before Full Bench of NIRC though the same was withdrawn by the Bank during pendency of the petition before High Court. It is well settled that if an order or proceedings are patently without jurisdiction, High Court can issue writ H in exercise of its jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, as it has been held in the case of Chairman Central Board of Revenue v. Pak Saudi Fertilizer Ltd. (2001 SCMR 777".
19. Admittedly the respondents Nos.2 to 5 are "civil servants", serving under petitioner, controlled by the Federal Government, they cannot invoke the jurisdiction of respondent No.1 by alleging unfair labour practice on the part of the petitioner. We are able to accept the contentions that the respondents being officer-bearers, if proceeded under the disciplinary proceedings, will amount to "unfair labour practice".
20. Upon the above discussions we are satisfied that the respondent No.1 erred in exercise of jurisdiction on the application of the respondents under section 49(4)(e) of the Ordinance for alleged unfair labour practice on the part of the management of the petitioner and the respondent No.1 illegally proceeded against the petitioner without first determining as to whether the alleged action of the management would be covered by the provisions of section 63 of the Ordinance so as to come within the definition of unfair labour practice, which was an essential condition for conferring jurisdiction on respondent No.1 to proceed with the application of respondent No.6. The respondent No.1 passed the impugned order in illegal exercise of the jurisdiction and cannot be sustained.
' Resultantly, we allow the petition, the impugned order is set aside, with no order as to costs.