This petition under Section 49(4)(e) read with Section 64 of the IRO, 2002 was filed by Syed Match Company Limited through its Managing Director Serai Saleh,, Haripur against Jehangir Khan and 19 others all employees of the petitioner Company (hereinafter called the Company) alongwith the Authority under the Payment of Wages Act, 1936, Hazara, Haripur who had been impleaded as respondent at Serial No. 21.
2. Briefly stated the ease of the petitioner as setout in the petition is that the petitioner Company was previously owned by Syed Abid Jawad who for certain reasons could not run the factory in profit and hence the said management retrenched all the 164 workers including the respondents No. 1 to 20 cited in the petition but the previous management did not pay the dues to the said individuals who were 164 in number, as such all these 164 workers under different setups approached the respondent No. 21 for payment of the outstanding dues. The respondent No. 21 vide Order dated 15.11.2000 proceeded ex parte and passed a decree against the previous management with 2 times compensation. (Copy of the ex parte decree/order is at Annexure-A).
The said ex parte order/decree was challenged through a constitutional petition (W.P. No. 43 of 2001) before the Honourable Peshawar High Court, Peshawar which was dismissed with the observations that the petitioner shall be at liberty to file an appeal in the appropriate forum and the time spent by the petitioner in the High Court shall be excluded from the computation of the period of limitation prescribed by law. The aforesaid decision was however, challenged by the previous management before the Honourable Supreme Court of Pakistan which was also dismissed in limine for the same reasons. In between v this intervening period the present management/owner purchased the Company which was a sick and closed unit from its previous owner and brought the unit into running condition. The present management/owner claims that after restoring/reopening the Factory, it came to their knowledge that a decree against the Company has been passed by the respondent No. 21 for payment of the out standing dues with 2 times compensation on account of illegal with-holding of the dues by the Company, It is further contended that in order to have a smooth functioning, the petitioner company contacted the said 164 individuals including the respondents No. 1 to 20 and after negotiations, the Company paid them their final and full dues in token of which the respondents No. 1 to 20 executed an undertaking in favour of the petitioner's Company that they would withdraw their claim against the Company from the Court of respondent No. 21 i.e. Authority under the payment of Wages Act, 1936, Hazara Haripur. (The said undertakings are enclosed at Annexure C to C/167). It is further submitted that apart-from the above under-takings a settlement was also reached between an Action Committee on behalf of the said 164 individual workers arid the previous management of the Company (copy of which is at Annexure-E). A perusal of the said settlement would show that an agreement was executed between the previous management of the Company as first party and the Labour Action Committee through their representative Muhammad Khan and others as a second party regarding a compromise in respect of payment of dues, In this view of the matter, the petitioner Company claims that there was no justification for the respondent No. 21 to proceed further into the matter and execute decree/order especially when the said individuals have categorically given an undertaking that they are bound to withdraw their cases from the respondent No. 21. It is further submitted that there are certain elements including the respondents No. 1 to 20 who are in league with the respondent No. 21, whose main aim is to close down the petitioner Company and especially the respondents No. 1 to 20 who are instigating-provoking the other employees to put the petitioner Company under pressure and threat for undue advantage such as payment of decretal amount which they have already received after executing a settlement and signing under-taking, It is further contended that the respondent No. 21 was apprised with the latest situation, through an application supported by documents such as the aforesaid undertaking as well as settlement with the prayer that further proceeding in the matter may be stopped particularly with regard to execution, auction and attachment of. The property of the petitioner Company, but the respondent No. 21 is conferring advantage to the respondents No. 1 to 20 and others who are 164 total in number, compel the petitioner Company to accept their illegal claims, It is next submitted that the petitioner Company is in process of filing an appeal against the order dated 10.4.2Q03 passed by the respondent No. 21 (Copy enclosed as Annexure-D) but since the facts narrated above constitute unfair labour practice on the part of the respondents No. 1 to 20 in collusion with each other, therefore, this Commission has the jurisdiction to interfere into the matter and provide relief to the petitioner Company for the enforcement of right guaranteed and secured to it under the settlement referred to above, It is further alleged that the respondents have made it a routine to extend threats to the petitioner by demonstrating unlawful assemblies of workers in the factory premises and also interfering into the smooth functioning of the factory. They also incited the other workers and instigated them to keep the petitioner under threat and pressure so that some more money could be grabbed from the petitioner Company without any lawful authority.
3. It is prayed that the respondents No. 1 to 20 and others who are 164 in number may be directed not to commit any act of unfair labour practice, particularly the respondent No. 21 not to execute the decree passed in the shape of ex-pare proceedings in view of the withdrawal of the claims through undertakings by the respondents No. 1 to 20 and 144 other individuals and also in view of the settlement executed by the Labour Action Committee on behalf of 164 individuals with the previous management, It was further prayed that all the respondents be directed to avoid occurrence of unfair labour practice and not to put pressure and extend threats for the additional payment.
4. Alongwith the main petition an application for an interim relief was also moved (No. 24(22)/03).
The main petition alongwith the stay application was placed before me on 11.4.2003. After hearing the learned counsel for the petitioner at considerable. Length, the petition was admitted for regular hearing. Notice was sent to the respondents to file- parawise comments to the main petition and reply to the stay application on 14.4.2002. Respondent No. 21 was also directed to appear in person or through an authorized representative and to produce all the relevant record. On 14.4.2003.
Managing Director and General Manager alongwith Mr. Abdul Hafiz Amjad for the petitioner, Mr. Javed Iqbal Shaikh and Arshad Zaman Kayani Advocates for respondents No. 1 to 20 and Mr. Tariq Mahmood (Office Assistant) on behalf of the respondent No. 21 i.e. Authority under the Payment of Wages Act, Hazara Haripur appeared. Learned counsel for the respondents requested for some time to file Vakalatnama and also the written statement and reply to the stay application. Office Assistant appearing on behalf of respondent No. 21 also requested that since they have not received copy of the petition therefore they may be allowed some time for filing the written statement and reply to the stay application. Request of the respondents was allowed. However, in the meanwhile the respondents No. 1 to 21 were directed to maintain status quo in respect of the affairs of the petitioner Company and the case was adjourned to 30.4.2003 for filing written statement and reply to the stay application. On the said date, the learned counsel for the respondents No. 1 to 20 appeared and filed an application for dismissal of the petition on the ground of jurisdiction, copy whereof was handed over to the learned counsel for the petitioner, In the said application it was asserted that keeping in view the preliminary objections, the Commission may first decide the issue of maintainability of the petition, It is contended that the respondents were employed in the petitioner's establishment and were .Performing their duties with zeal and zest upto the entire satisfaction of the employer. But in June, 2000, the petitioner Company closed down their Factory/establishment without permission of the Labour Court, as required under Order- 11A of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and thus they have committed an act of unfair labour practice under Section 63(i) of IRO, 2002. Thus the respondents having no other alternative except to file their claims for recovery of the- outstanding wages and other service benefits as envisaged under Section 15(2) of the Payment of Wages Act 1936, in the Court of the Authority under the said Act i.e. The respondent No. 21. It is further submitted that the respondent No. 21, entertained the applications and issued notices to the petitioner's company. The petitioner's Company made their appearance and filed their written statement before the "Authority under the payment of Wages Act," however, there-after adjournments were repeatedly sought, which were allowed but ultimately the management of the Company was proceeded ex-parte and the claims of the individual workers were accepted with 2 times compensation on account of illegal with-holding of the dues by the petitioner company. Agitating against the aforesaid order, the petitioner Company filed an application under Rule 8(3) of the payment of Wages (Procedure) Rules, 1937, but the same was dismissed, vide order dated 6.2.2001. The petitioner thereafter, assailed the aforesaid orders of he "Authority under the payment of Wages Act" in Writ Petitions No. 43/2001 and 51/2001 before the Honourable Peshawar High Court, Peshawar but the same were dismissed vide judgment dated 15.2.2002. Thus the respondents filed their execution petitions for recovery of the decretal amount as ordered by the "Authority under the Payment of Wages Act," but the same were stayed in view of the pendency of the aforesaid writ petitions, however/ the properties of the petitioner's company were attached according to law for the decretal amount. Meanwhile the petitioner Company filed a CPLA before the Honourable Supreme Court of Pakistan against the judgment passed in the aforesaid writ petitions but the said CPLA was also dismissed in limine vide judgment dated 7.4.2003. However after having exhausted their remedy upto the Honourable Supreme Court of Pakistan, the petitioner's Company again filed an application under Order-9 Rule 13 of C.P.C, before the "Authority under the payment of Wages Act" i.e. Respondent No. 21, on 9.4.2003 but the same was too rejected vide order dated 10.4.2008 After exhausting all the remedies i.e. Statutory as well as constitutional, the petitioner company with mala fide intention and ulterior motives by playing fraud upon this Commission and also by concealing the facts, filed the instant petition under Section 49(4)(e) read with Section-64 of the IRO, 2002 alongwith an application for issuance of temporary injunction, It is contended that the relief claimed against the respondent No. 21 i.e. "Authority under the payment of Wages Act" on the allegations that he is in league with the respondents workers has committed unfair labour practice is without any substance as the petitioner's company failed to pinpoint any act of unfair labour practice as specified under the IRO, 2002, hence apparently the petition seems to be misuse of process of law and only has been filed to deprive the respondents from the fruit of their efforts who had adopted a legal course for redressal of their grievances, It is contended that the Commission has got no jurisdiction to entertain and adjudicate upon the matter as this Commission is not an Appellate Forum for the purposes of assailing or staying the executions orders issued by the "Authority under the Payment of Wages Act". Sections 17 of the said Act provides a specific Appellate hierarchy i.e. An appeal to the Labour Court and then a Revision Petition before the High Court as laid down under Section 48(3) of IOR, 2002, thus the instant petition is liable to be dismissed for lack of jurisdiction, It is further contended that after having filed the instant petition, the petitioner company also assailed the order dated 15.11,2000 and other dated 10.4.2003 passed by the learned Authority by filing an appeal under Section 17 of the Payment Wages Act, 1936 before the learned Labour Court at Haripur which is pending adjudication before the said Court. Regarding the alleged undertaking given by the respondents workers, it is contended that this very issue being the subject matter can validly be adjudicated upon by the Authority under the Payment of Wages Act where the matter of execution is directly and substantially pending adjudication, It is further contended that the instant petition has been filed to circumvent the statutory provisions of law by playing fraud not only upon the statute but also with this Commission, It is prayed that for just proper and fair disposal of the already determined rights of the poor respondents workers and to Uphold the dictum of law and supremacy of judgments finally delivered by the August Supreme Court of Pakistan, it will be fair, equitable and in the interest of justice that the instant petition be dismissed being devoid of any merit.
5. I have heard the arguments of learned counsel for both the parties at considerable length on maintainability of the petition and have also minutely examined the pleadings of the parties and their respective version.
6. I have come to the conclusion that the instant petition is not maintainable against the respondent No. 21 i.e. Authority under the Payment of Wages Act, 1936 Hazara Haripur. The Authority under the payment of Wages Act has in discharge of his official duties as laid down under the Payment of Wages Act 1936, admitted the applications moved by the respondents No. 1 to 20 and other 144 workers under Section 15 of the Payment of Wages Act, 1936 and vide order dated 15.11.2000, accepted the claims with 2 time compensation on account of illegal with-holding of the dues by the petitioner company as provided under the said Act. The petitioner has sought relief against the Authority under the Payment of Wages Act with the prayer that the learned Authority (respondent No. 21) be directed that keeping in view the undertaking given by the respondents No. 1 to 20 and other 144 individuals regarding withdrawal of their claims and also in view of the "Settlement" executed by the Labour Action Committee on behalf of the said 164 individuals with the previous management of the Company, the decree passed in the shape of ex parte proceedings should not be executed, In this connection it may be observed that the NIRC does not enjoy any appellate powers over the learned Authority under the Payment of Wages Act 1936.
Further there is also no provision under the IRO, 2002 through which any relief can be claimed against the respondent No. 21 before the NIRC. As far as the allegations of unfair Practices are concerned there is no such specified allegation against the Authority under the Payment of Wages Act, 1936 (Respondent No. 21). Thus if the petitioner Company is aggrieved by any order of the respondent No. 21 they can file an appeal under the Payment of Wages Act, 1936 before the appropriate forum, which they have already filed and pending adjudication before the learned Labour Court at Haripur, Moreover it has been clearly laid down under Section 56(d) of the Specific Relief Act, 1877 that an injunction cannot be granted to stay proceedings in a Court not subordinate to that from which the injunction is sought, It is further laid down under Section 56(d) that no injunction can be granted to interfere with public duties of any department of the Federal Government or any Provincial Government. I, therefore have no hesitation in my mind that respondent No. 21 i.e. The "learned Authority under the Payment of Wages Act, should not have been made a party in the proceedings. I therefore, dismiss the petition so far as the respondent No. 21 is. Concerned as the petitioner Company failed to make out any case of unfair labour practice against the Authority under the Payment of Wages Act.
7. As regards the other respondents No. 1 to 20, the allegations of unfair labour practice as specified under Section 64 of the IRO, 2002 have been made against the said respondents, who are employees of the petitioner company. The admitted fact is that the petitioner Company has filed this petition under Section 49(4)(e) read with Section 64 of the IRO, 2002 against the respondents No. 1 to 20 who are employees of the petitioner company, In order to better appreciate and examine the contention of the parties regarding the competency of the instant petition, it would be useful to reproduce below the provisions of Section 49(4)(e) and Section 64(1 )(d) of IRO, 20O2:- Section 49(4)'The functions of the Commission shall be to
(e) deal with cases of unfair labour practices specified in Section 63 and 64 on the part of employers, workmen, collective bargaining agents, industry wise trade unions or either of them or persons acting on behalf of any of them, whether committed individually or collectively, in the manner laid down under Section 46 or 33 or in such other way as may be prescribed and to take in such manner as may be prescribed by regulations under Sections 55, measures calculated to prevent an employer or workman from committing an unfair labour practice."
Section 64(1) "Unfair Labour Practices on the part of workman... (1) No workmen...(1) No workman, a trade union of workmen or any of its members or office bearers, or any other person shall........ (d) compel or attempt to compel the employer to accept any demand by using intimidation, coercion, pressure, threat, confinement or ouster from a place, dispossession, assault, physical injury, disconnection to telephone, water or power facilities or by such other methods: or
8. From the bare reading of the above referred provisions of the IRO, 2002, it is manifestly clear that this Commission has exclusive jurisdiction to deal with the cases of unfair labour practices specified in Section 64 of the said ordinance on the part of the workmen, trade union or either of them or person acting on behalf of them whether committed individually or collectively, It may be further added that the allegation of unfair labour practice if any is a mixed question of law and facts, which can be examined and determined only after recording evidence of the parties, therefore it would be premature to give any finding at this stage. Therefore both the parties are required to adduce evidence in support of their contention, It may pertinently be observed that the jurisdiction of the Commission is confined to the cases of unfair labour practice, that is to say that its jurisdiction is attracted to all those cases as specified under Section 64 of IRO, 2002. Under the circumstances the crux of the matter demands that some pro and contra evidence is necessary to be brought on record for just and proper adjudication of the matter.
9. Upshot of the above discussion is that I have no hesitation in my mind that the respondent No. 21 should not have been made a party in the proceedings. I, therefore, dismiss the petition as far as the respondent No. 21 namely the Authority under the Payment of Wags Act is concerned and the ad-interim order dated 14.4.2003 is recalled to the extent of the said respondent No. 21. As regards the other respondents No. 1 to 20, I am quite satisfied that the instant petition which is based on the allegations of unfair labour practice is maintainable and this Commission has the jurisdiction to deal with the instant case. Thus in the meanwhile the ad-interim order dated 14.4.2003 shall continue till. The next date of hearing.
10. It may pertinently be mentioned here that the petitioner Company has already assailed the order dated 15.11.2000 and order dated 10.4.2003 passed by the "learned Authority under the Payment of Wages Act" by filing an appeal under Section 17 of the Payment of Wages Act, 1936 before the learned Labour Court at Haripur which is still pending adjudication. Under the circumstances, it would be fair and proper and also in the interest of justice that as .Laid down under Section 49(6)(c) and (7) of IRO, 2002, the instant petition alongwith the stay application be referred to the learned Labour Court at Haripur for disposal, within whose jurisdiction the case has occurred. Accordingly interims of Section 49(6)
(c),of IRO, 2002, the instant petition alongwith stay application (No. 24(22).2003) is referred/transferred to the learned Labour Court at Haripur for disposal. Both the parties are directed to appear before the learned Labour Court at Haripur on 15.7.2003. Office is directed to transmit R and P of the case to learned Labour Court at Haripur.