' KHILJI ARIF HUSSAIN, J.--.-The petitioner through this petition has questioned the order of status quo passed by National Industrial Relations Commission Karachi Bench (respondent No, 1) as crum non judice, bad in the eye of law, null and void and without lawful authority.
2. Brief facts for the purpose of deciding the petition is that the petitioner is a company owned and controlled by Federal Ministry of Industries and Production and respondent No,2 is an employee of the petitioner-Corporation. Due to some dispute between the respondent No,2 and another employee of the petitioner-Corporation during duty hours which according to the petitioners spoiled the atmosphere of good service order and discipline treating the same as misconduct, served notice with statement of allegations and charge under section 3 (i) (b) of Removal from Service (Special Powers) Ordinance 2000. Another notice of allegations and charges was served on 10-10-2001 upon the respondent No,2 on having ground with Dr. Mustansar Gilani, Medical Officer of petitioner-Corporation. Both these statement and charges were served upon the respondent No,2 after obtaining orders from the competent authorities in exercise of powers conferred under section 2(aa) read with sections 3 and 5 of Removal from Service Special Powers) Ordinance 2000 and respondent No,2 was directed to submit his written defence/explanation within seven days of receipt of the notice of allegations. The respondent No,2 instead of replying to the allegations levelled against him and defending the matter before the enquiry officer, invoked the jurisdiction of N.I.R.C. Karachi Bench and filed cases Nos.4A(243)/2001-K and 4A(239)/2001-K respectively impugned therein both the statement of allegations and charges alleging that the same was issued malafidely as respondent is a member of trade union. It was further alleged by the respondent that issuance of notice as an act of Unfair Labour Practice and petitioner is bent upon to dismiss or terminate the services of respondent due to his lawful trade union activities. The learned Single Member of respondent No,1 N.I.R.C. Granted as ex parte orders of 'status quo' in favour of respondent No,2 on 3-11-2001 and 8-11-2001. The orders of status quo were subsequently modified to the extent that respondent should attend the enquiry proceedings. However, under the grab of status quo respondent No,2 avoided to attend the same. The petitioner through this petition questioned the jurisdiction of respondent No,1 N.I.R.C.
2. Heard Mr. Syed Amanullah Agha, learned Advocate for the petitioner and Ch. Rashid Ahmad learned Advocate for the respondent No,2. The learned Advocate for the petitioner mainly argued that the petitioner is a corporation controlled and owned by the Federal Government and accordingly within the meaning of section 2-A of the Service Tribunal Act, 1973 the respondent is deemed to be a civil servant and only Federal Service Tribunal had jurisdiction in the matter, if respondent No,2 have any grievance and respondent No,1 has no jurisdiction to entertain the application filed by the petitioner on the allegations of "unfair labour practice". Learned Advocate further contended that allegation of unfair labour practice has been levied with mala fide intention.
The respondent No,2 is neither C.B.A. Member nor C.B.R. Or Trade Union Activity is being observed or enjoyed in the petitioner-Corporation as all union activities has been stayed by respondent No,1 since long therefore, the jurisdiction of N.I.R.C. Cannot be invoked under section 49 (4-a & e) of I.R.O., 2002.
3. On the other hand, Ch. Rasheed Ahmed, learned Advocate for the respondent No,2 argued that respondent No,1 N.I.R.C. Have excessive jurisdiction in the matter where allegations of unfair labour practice has been levied. It was further contended that labour law is beneficial legislature and should be interpreted in favour of the workers. It was further contended that Removal from Service (Special Powers) Ordinance 2000 was inserted in the year 2001 whereas Industrial Relations Ordinance 2002 was promulgated on 26-9-2002 and being special law would be prevailed upon the provisions of previous law including Service Tribunal Act and Removal from Service (Special Powers) Ordinance, 2000. It was further contended that Service Tribunal has jurisdiction against final order that is dismissal, removal etc. And not in case where issues of show-cause notice has been questioned. The learned Advocate lastly argued that petitioner in his petition has questioned only interim orders of status quo passed by Respondent No,1 whereas said order was confirmed on 17-6-2003 against which order, appeal was filed by petitioner before Full Bench of N.I.R.C. Which was dismissed in limine on 27-11-2004 on the ground that matter are ripe for evidence.
4. We have taken into consideration respective arguments advanced by the learned Advocates for the parties. It has not been questioned by respondent No,2 that the petitioner-Corporation is owned and controlled by the Federal Government. The only question required consideration is that in the circumstances of the case whether respondent No,1 N.I.R.C. Have jurisdiction to entertain the application if allegation of Unfair Labour Practice has been levelled. In the case of HBFC v. Member N.I.R.C. Reported in (2005 PLC 1), a Division Bench of this Court while relying upon the case of I.A.
Sherwani v. Government of Pakistan and others (1991 SCMR 1041) held as under:-- "With regard to the pronouncement made by the Supreme Court relative to the ouster of jurisdiction of tribunal/forum, he submitted that a pronouncement by any Court cannot render any provision of 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 letters 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 production even in matters falling within the scope of terms and conditions of the workers if there was allegation of unfair labour practice, mala fide or ulterior motive. We are not in agreement with this contention inasmuch as the Supreme Court while marking 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 provisions of law, if an 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 agitiate the issue before the normal forum then he would be resorting to measures rendering the provisions 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 take amendment in 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 Service Tribunal Act declare all employees/workers of autonomous or semi autonomous bodies; corporations, establishments and companies controlled, managed or run by the Federal Government, a civil servants thus precluding then 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 Tribunal 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 practice would be rendered a 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 Tribunal 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 a surplus, redundant or nugatory."
5. In the case of Sui Southern Gas Company Ltd. v. N.I.R.C. And 5 others (2005 PLC (C.S.) 116) another Division Bench of this Court after serving statement of allegations upon the employee that he raised the aggressive and threatening slogans, used abusive and filthy language, the employee filed petition under section 49 (4)(e) of I.R.O. 2002 before N.I.R.C. Who assumed the jurisdiction, granted interim order not to pass final order, issued notice to employer-Corporation, was question by filing writ petition in this Court, after discussing various case-law on the subject summarized the ratio as under:--
(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 Tribunal established under the Service Tribunals Act, 1973 shall have exclusive jurisdiction to entertain such dispute as provided under section 4 of the Service Tribunal 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 N.I.R.C. Under section 49 (4)(c) of the Ordinance 2001.
(5) The N.I.R.C. 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.
' The Honourable Division Bench further held that mere "charge sheet" or show-cause notice and initiation of proceedings under the disciplinary rules against civil servant does not furnish him a cause for invoking the jurisdiction of a tribunal or a Court.
6. While agreeing with the above observations, we are of the view that the jurisdiction of N.I.R.C. Can be invoked when from the charge-sheet itself or from any other material on record prima facie it can be established that the alleged action comes within the definition of unfair labour practice, as defined under section 15 of the Industrial Relations Ordinance, 1969 and or section 63 of the Industrial Relations Ordinance, 2002. From the material on record it appears that the respondent had failed to bring his case within the ambit of section 15 of the Industrial Relations Ordinance,1969.
Exercise of jurisdiction by the N.I.R.C. In presence of ouster of jurisdiction of Court/Tribunal, other than Service Tribunal under section 2A of the Service Tribunals Act, 1993 should be construed strictly and it is for the N.I.R.C. To address the issue of jurisdiction and then pass order as deems fit.
7. Keeping in view the principle laid down in the case of Sui Southern Gas Company (Supra) and I.A.
Sherwani (Supra), it appears that none of the allegation in the charge-sheet satisfied that condition laid down in section 63 of Industrial Relations Ordinance 2002 to term the same as unfair labour practice.'
8. For the foregoing reasons, we allow the petition and the impugned order passed by the N.I.R.C.
Are set aside and proceedings pending before the respondent No,1 are declared to be illegal and without lawful authority. The petitioner can proceed with the enquiry pending against the respondent No,2 strictly in accordance with law and in case respondent No,2 feel aggrieved by any order passed by the enquiry officer, he can avail remedy available to him under the law.