' MUSHIR ALAM, J.--- The petitioner has impugned assumption of jurisdiction by the NIRC. It appears that through ad interim order dated 23-9-2006, National Industrial Relation Commission (NIRC) suspended the order, dated 22-9-2006 whereby the respondents were retired. Impugned order was confirmed, and further the petitioner was directed to treat respondents as continuing in the employment and allowed them to resume their duties until the final disposal of the petition.
2. Syed Hassan Azhar Rizvi learned counsel for the petitioner contends that disciplinary action was taken against the respondents Nos.2 and 3, they were charge-sheeted on 24-1-2006. Respondents Nos.2 and 3 filed reply. According to him charge-sheet was proved. Second show-cause notice was issued, following reply; they were compulsorily retired on 22-9-2009. The respondent refused to receive the orders of compulsory retirement, though the letter of retirement was dispatched at the given address through courier service. According to him, the moment retirement order is passed they stood retired.
3. It seems that in the meantime respondent filed petition under section 49(4)(e) of Industrial Relations Ordinance, 2002 (I.R.O.). On 23-9-2006 NIRC passed the interim order. The petitioner herein challenges the jurisdiction of the learned Commission. However, the learned Commission, observed that it had the jurisdiction proceeded to hear the application and passed the impugned order, referred to above.
4. Syed Hassan Azhar Rizvi, learned counsel appearing for the petitioner contended that per section 79-B of the KPT Act, 1886 employees of KPT are deemed to be Civil Servants, controversy pertains to terms and conditions of the service, as such jurisdiction of NIRC is barred according to him, only the Federal Service Tribunal has the exclusive jurisdiction.
5. In support of his contention he has placed reliance on following case-laws:---
(1) Syed Yasin Ali and 2 others v. Messrs Pak News Private Ltd., through Managing Director and 2 others 2003 PLC 240,
(2) Malik Nazar Hussain v. National Bank of Pakistan and another 2003 PLC 4005, (3) Pak American Fertilizers Ltd. Through Senior Manager (IR) v. Employees Union (CBA) Pak American Fertilizers Ltd.
Through General Secretary and another 2003 PLC 408; (4) Abdul Karim v. PIAC through Chairman, Karachi and 2 others 2001 PLC 79, (5) Mehnatkash Labour Union, Alnoor Sugar Mills Limited through General Secretary v. Al-Noor Sugar Mills Limited through Executive Vice-President and 2 others 2004 PLC 209, (6) Islamuddin and 2 others v. J. Thomas C. Vanopstal, General Secretary and another 2004 PLC 229, (7) Shah Murad Sugar Mills Mehnatkash Union (CBA), through General Secretary v. Shah Murad Sugar Mills Limited PECHS, Karachi through Managing Director and another 2005 PLC 88; (8) Malik Nasim Iqbal v. United Bank Limited through Zonal Chief and 2 others 2005 PLC 407, (9) Sajid Hussain and 4 others v. Sabro Refrigeration and Air-conditioning Equipment Manufacturers S.A. Other Private Ltd. Through General Manager and another 2004 PLC 125, (10)
National Engineering Services Pak. And others v. NIRC and others 2003 PLC 106, (11) Muhammad Ashraf and 10 others v. Gharibwal Cement Limited through General Manager 2003 PLC 455, (12)
Syed Shahid Raza v. Oxford University Press 2003 PLC (C.S.) 11, (13) Intizar Ahmed v. MCB and others 2006 PLC 380, (14) Lucky Textiles Mills through General Manager v. Abdul Rashid and 14 others 2006 PLC 108, (15) Mazdoor Union Faran Sugar Mills through General Secretary v. Faran Sugar Mills Limited through Chief Executive and 2 others 2006 PLC 404.
6. It was urged that, the learned member did not refer the cases relied upon by the petitioner and preceded to decide the application on merits. When his attention was drawn to the case of Muhammad Mubinulislam v. Federation of Pakistan reported in PLD 2006 SC 602 @ 693, he contended that, the respondents could have invoked the jurisdiction of the Labour Court and not that of the NIRC.
7. Learned counsel for the respondents Nos.2 and 3 vehemently opposed the petition. According to learned counsel for the respondents 2 and 3, petition is not maintainable, alternate remedy of appeal is provided under section 52 of IRO, 2002, which has already been availed, appeal is sub judice. He further urged that NIRC is constituted, under section 52 of IRO and its jurisdiction under section 4(e), extends to matter relating to unfair labour practice. He has referred to proviso to subsection (9) of section 49 of IRO. According to him, case of unfair labour practice was made out, therefore, NIRC had jurisdiction to pass order impugned herein.
8. Mr. Akhtar Ali Mehmood learned D.A.-G. Was required to assist the Court on the issue of jurisdiction of NIRC. Learned D.A.-G. Has referred to para.11 of the impugned order and urged that issue has been dealt with by the learned Commission. Learned D.A.-G. Raises twofold objection. He refers to case of Muhammad Mubeenullslam PLD 2006 SC 602 relevant portion is at page 693.
Drawing attention to the concluding paragraph 108, he contends that unless the petitioners are able to show that the employees of KPT are civil servants, merely treating them as such for other purposes would neither give them status of civil servants within contemplation of section 2(1)(b) of Civil Servant Act, 1973, nor extend jurisdiction of service Tribunal. According to him, by virtue of deeming clause in any subordinate legislation would confer status of civil servant as held by the apex Court in the Muhammad MubeenulIslam (supra) case. His second limb of argument is pitched on the ground that it is for the Commission to see whether any case of unfair labour practice is made out or not. He further submits that in terms of section 953 IRO , 2002, finality is attached to the order passed by the Commission; it could not be challenged before any Court of law. He however, concedes writ jurisdiction of this Court is not curtailed by such clause, which could always be assumed whenever case of interference is made out. According to him, no case for interference in exercise of the writ jurisdiction is made out
9. Syed Hassan Azhar Rizvi, exercising right of rebuttal has drawn our attention to case reported as Ghakhar Mandi v. Authority under Payment of Wages Act PLD 2002 SC 452 to urge that where jurisdiction of trial Court is challenged, jurisdictional issue is to be resolved before proceeding in the matter. According to him, the Commission did not examine such aspect, thus, injustice has perpetuate. He further urged that, writ always lies where the authority or. Court has no jurisdiction and order if any is without jurisdiction.
10. We have heard arguments and perused the record, in view of the case of Muhammad Mubeenulislam (supra), contention of learned counsel that the respondents could have invoked IRO, 2002 for the redressal of grievance and not the jurisdiction of NIRC, and that no case of unfair labour practice is made out. Learned counsel has drawn our attention to section 49(4)(e) IRO, 2002 at page 87 of the file, with specific reference of paragraph 3, 4 and 5. According to him general allegations are made in the petition, therefore, it cannot be said that unfair labour practice has been committed. It may be observed that no evidence is required to incorporate in the pleadings.
The order impugned in the instant petition is still sub judice before the Commission; therefore, it is not appropriate to give any comments at this stage on the D point of jurisdiction. Even otherwise, in the case of Ghakhar Mandi, as relied upon by the learned counsel for the petitioner, admittedly the question of jurisdiction, as raised by the Town Committee, was not adverted to by the Authority under Payment of Wages Act, as provided under the Payment of Wages Act 1936. In the instant case NIRC has elaborately dealt with the question of its jurisdiction in para.11 of the impugned order before passing any order on merits, therefore, the judgment referred is of no use. Petitioner was not able to make out case of interference in exercise of writ jurisdiction, finding no merits petition is dismissed along with all pending applications.