Ch. Asad Raza, Member--M/s. Abdul Aziz Baloch, Mehboob Zaman, Muhammad Ismail, Ch. Jawaidur Rehman and Abdul Majeed, the five petitioners employed as Electrician on 6.6.1993, claiming to have, performed their duties in a befitting manner and to the entire satisfaction of the management of the respondent; and pleading that the latter had never been fair to the workers in general, and petitioners in particular, in the back ground of their trade union activities and members of Adamjee Insurance Employees Union, of CBA in the establishment, as they expressed for an apprehension to face victimization and unfair labour practice at the hands of the respondents in terms of either their removal from employment, or transfer to other places than the present one, or to the far flung areas, simply with an attempt to reduce the permanent trade union workers, and but for that, they knocked at the doors of the Commission, with its bench at Karachi, the law was set in motion under section 25-A(8)(g) of the IRA, 2008, alongwith an application under Regulation 32(2) of the NIRC (Procedure and Function) Regulations, 1973.
2. The proceedings before the learned member at Karachi, in all 05 petitioners, remained in terms, that while admitting the petitions, he passed an order for notice in each, which were issued to the respondent's management, on 2.1.2009, and as on the next two dates, the learned member was not available, the petitioner, informed him on 10.1.2009, that as per report of the Bailiff, the respondents had refused to receive the notice by avoiding the legal process issued, but even on 10.1.2009, allegedly, the learned member declined to pass an order on the stay application, and granted time for filing of written statement and reply to the stay application and the learned member adjourned the case to 14.1.2009 and as the written statements were placed on record, it was claimed by the respondent management that the petitioners had already been retrenched, and thus the matter was not maintainable before the Commission. The case file was postponed to 15.1.2009 for arguments, and ultimately, vide order dated 16.1.2009, the stay applications were turned down through a single order passed by the learned member.
3. The legal validity of the aforesaid order going un-favouraly to petitioners/appellants, has been called into question by means of these 05 appeals presented on 26.1.2009, and it is contended therein that the impugned order was passed in, a highly un-judicial manner, it was not only bad in law, but also a clear negation of fair justice by the learned member who committed an act to Court with prejudice to the appellants, and badly failed to exercise the discretion, and denied the protection to the appellants, that it was a result of non application of judicial mind, therefore, the impugned order was, legally not maintainable? hence these appeals, that it be held at this, end that the appellants are entitled for interim relief till disposal of the main petitions, the operation of the letter of retrenchment dated 2.1.2009, be suspended, or in any other relief, deemed fit and appropriate, in circumstances, of the case, may be granted, now to the present appellants.
4. We have gone through the record with much care, and also had the privileged to have the legal wisdom displayed at the bar by the learned counsel of the parties, and herein, as the law point involved, the relief claimed and the respondents are one and the same establishment, through this single order, we propose to dispose of the matter in hand.
5. Before we advert to the expressions made at bar by the learned counsel for the appellants, it would be appropriate to given a reference to the contents of the impugned order in it be noted that the learned member, had precisely concluded, that, "where a case of unfair labour practice is likely to occur the Commission has the jurisdiction to pass prohibitory order but in the instant case, the appellant had themselves produced their retrenchment letters alongwith the petitions filed under section 25-A(8)(g) of the IRA 2008, and also stay applications seeking suspension of the aforesaid retrenchment order passed against them, and by that, he derived the conclusion that by no means they were the workmen under the respondent's company, therefore, there was no apprehension of unfair labour practice against them, and after the action had been taken, the appellants could have moved to the Labour Court. He further held that in view of an admitted position that the petitioners had been removed from service and in that eventually if the retrenchment orders were suspended, the matter would amount to status quo ante, and the mandatory relief cannot been granted under the provisions of Regulation 32(2)(c) of the NIRC (Procedure and Functions) Regulations, 1973. He also held that there was no express power conferred on the Commission for an order of reinstatement by way of interim relief, the regulations have statutory basis and force and they do not expressly empower the Commission, to grant the reinstatement of the employee, because such power of reinstatement is not ancillary or incidental to the process of adjudication rather it appears to be consequential to the finding of guilt, and only when the Commission had arrived at the conclusion to the guilt of the employer that a further discretion is required to be exercised in the matter, directing the reinstatement of the employee, therefore, keeping in view the scheme of the Act or, the Regulations, the relief claimed for an order of reinstatement, appeared to be misconceived therefore, it cannot be exercised ad-interim. He maintained that it was true that the Commission had vast powers under the law, to prevent occurrence or recurrence of an unfair labour practice under clause (g) of Section 8 of Section 25 of IRA, 2008 but shows, that the Commission has been empowered to take any action in such a manner, as prescribed by the Regulations under Section 31, to prevent an employer or workman from committing an act of unfair labour practice, that clause 2 of Regulations 32 provides in detail, the preventive measures which can be taken, and on the strength of such powers, the Commission could protect the reinstatement of workers while seized with their complaints under Section 72 of the IRA, 2008 because it was a sort of continuing wrong, and in the present case, the petitioners had filed application under Regulation 32(2)(C) of the NIRC (Procedure and Function) Regulations, 1973, which deals with the act of unfair labour practice likely to be committed. The appellants having produced the copies of the retrenchment orders on file, it would mean that through their own acts, they have conceded to have been removed from the service by the respondents, therefore, the act of unfair labour practice, if proved, has already been committed and completed, for which they have the remedy of filing of grievance petition before the concerned Labour Court and thus, the applications for interim stay ante as misconceived and not maintainable, those were dismissed.
6. The learned counsel for the appellants has vehemently argued on the lines that as the main petitions of the appellants, when presented on 2.1.2009, those were "admitted" for hearing, but no attention was given to the stay applications made for grant of interim injunction and the learned Member, instead of protecting the valuable rights of the appellants, to their source of earning, and make their two times meals, preferred to issue only a notice to the respondents, and in this way, according to the gentleman at bar representing the appellants, the learned member remained with non application of his judicial mind, and a conduct unjudicial, and ultimately by rejecting the stay applications through the impugned order dated 16.01.2009, the matter had followed with a mis-carriage of justice. He is of the view that grant of interim injunction with suspension of retrenchment order, was a legal obligation cast upon the learned member, and failing to exercise that power, for the appellants above, it has necessitated for the instant appeals.
7. We have given a considered mind to all that has been said and done at bar on behalf 'of the appellants, but do not feel persuaded with any of his argument, to express contrarily to one, as confined in the impugned order, and the reasons are obvious, that needless to say that the grant of interim injunction, is a discretion, which, obviously has to be exercised in a manner so warranted by the law and the rules of business on the subject; prescribed from time to time, and in chain of legal precedents of the Superior Courts. Each case has its own facts, merits and de-merits, and required to be disposed of accordingly. We have noted with clarity of mind that the appellants themselves, through their counsel, had placed on record, the very order of retrenchment on file, and so at the very first day, therefore it can be said conveniently that for the alleged unfair labour practice, to which they preferred to challenge, the mischief was not only in their knowledge but also conveyed in writing to all the appellants, and by the time they presented their petitions before the learned Member of the Commission, they had ceased to be the employees of the respondent's management. Therefore, it was hardly a case of grant of interim injunction, seeking suspension of the retrenchment order already conveyed to the appellants, and had it been done so, on the lines given and proposed of the learned counsel for the appellants, that must have been, firstly, an encroachment on the legal limitations, prescribed for the Commission, and also the passing of an order for the reinstatement of the appellants, which academically could be termed as wrongful assumption of the jurisdiction by the learned member, which otherwise, remains exclusively for the labour Court. Therefore from each angle, whether be legal, or factual, the stance of the appellants, no where made out a case of interim injunction and finding nothing wrong with the impugned order, we proceed to dismiss these appeals.
8. Before parting with, for the remarks, given in the memorandum of appeals and repeated while arguing the case, by the learned counsel for the appellants, in valuing the conduct of the learned member, we intend to place on record, that he is an Officer of the Court, and his first duty is towards the Court by maintaining dignity of the profession, respect others, so as to be reciprocated as well, maintain the decency both as a professional, and a respectable member of the bar and to all that he expressed today, at least, we here at this end, but with respect, cannot endorse comfortably.