' BASHIR AHMED MEMON (MEMBER).--- This is complaint under section 27 of the I.R.A., 2008 filed by the complainant alleging contempt of Court to have been committed by the alleged respondents/ contemners.
2. Briefly the facts of the case are that the complainant Muhammad Zaki is employed with respondents management and earlier he has filed a petition under section 49(4)(e) of the I.R.O., 2002 bearing No,4A(2) of 2008/K along with stay application under Regulation 32(2)(c) of NIRC (P&F) Regulations, 1973 alleging certain acts of unfair labour practice on the part of respondents. It is stated that while admitting the petition interim prohibitory order was passed and later on the said interim order was confirmed vide order, dated 27-4-2009 passed by this Bench of Commission.
3. The complainant in the present complaint has asserted that respondents management has filed an applicMion before First Sindh Labour Court, Karachi for permission to dismiss him and by filing of that application the respondents have committed contempt of Court, as such this complaint has been filed to take cognizance of the offence of defiance and violation of the order of this Commission and to proceed against the respondents/accused persons.
4. Respondents have filed reply statement with preliminary legal objections and have asserted that while confirming the stay order in favour of complainant this Bench of Commission has restrained the respondents from dismissing, terminating, removing, suspending or passing any adverse order in respect of employment of the complainant on the basis of charge-sheet dated 23-10-2007.
Admittedly neither the complainant has been dismissed or removed or has been punished in any way in respect of his employment on the basis of charge-sheet dated 23-10-2007 which has been impugned by the complainant in his main petition, therefore, the respondents have not committed any violation of the said order, which may fall within contempt of Court, therefore, the complaint is not maintainable and the same may be dismissed in limine. They have further asserted that by filing of application before the Labour Court they have adopted legal course for getting permission to dismiss the complainant because an industrial disputes was pending, as such the respondents were legally bound to seek permission from the competent Labour Court before dismissing the office-bearer of the CBA Union. The respondents have further claimed that in the main petition filed by the complainant bearing No,4A(w) of 2008/K they had very clearly taken the plea that:--- "That the petitioner claims that industrial disputes are pending for adjudication before the Honourable Fifth Sindh Labour in terms of section 31(2) of I.R.O., 2008 bearing Nos.1 of 2007 and 2 of 2007. The petitioner also claims to be the General Secretary of the Singer Industries Labour Union.In terms of section 40 of I.R.O., 2002 protection is inherently available whereby office-bearer can be inter alias dismissed except with the permission of the Labour Court. The petition before this Bench of Commission is therefore, misconceived being unnecessary and not maintainable and is liable to be dismissed."
' Reiterating the very same plea the respondents management in their reply statement has asserted that while filing an application for permission for dismissing the complainant they have adopted the legal course, therefore, they have not committed any contempt of Court as alleged by the complainant, therefore, the complaint may be dismissed.
5. I have heard both the learned counsel for the parties who have reiterated the same plea as pleaded in the complaint and reply.
6. It has been argued by Mr. M.A.K. Azmati, learned Advocate for the complainant that earlier the complainant has filed a petition under section 49(4)(e) of the I.R.O., 2002 challenging certain acts of unfair labour practice on the part of respondents, whereas the respondents claim that complainant has committed an act of misconduct and apprehending disciplinary action he has approached this Bench of Commission and has obtained stay order.
7. It was argued by Mr. Faisal Mahmood Ghani, learned counsel appearing on behalf of the respondents that S.O.11-A of the Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968 defines that misconduct and unfair labour practice are two separate proceedings.
Learned counsel has referred me to section 40(2) of I.R.O., 2002, which reads as under:--- "40. Conditions of service to remain unchanged while proceedings pending.--- (1) No employer shall, while any conciliation proceedings or proceedings before an Arbitrator, the Labour Court or a Court of competent jurisdiction in respect of an industrial dispute are pending, alter to the disadvantage of any workman concerned in such dispute, the conditions of service applicable to him before the commencement of the conciliation proceedings or of the proceedings before the Arbitrator, the Labour Court or as the case may be, any other Court or competent jurisdiction, nor shall he---
(a) save with the permission of the Conciliator or the Board, while any conciliation proceedings are pending; or
(b) save with the permission of the Arbitrator, the Labour Court or a Court of competent jurisdiction, while any proceedings before the Arbitrator the Labour Court or the High Court are pending, ' Discharge, dismiss or otherwise punish any workman except for misconduct not connected with such dispute.
(2) Notwithstanding anything contained in subsection (1), an office-bearer of a registered trade union shall not, during the pendency of any proceedings referred to in subsection (1) be discharged, dismissed or otherwise punished for misconduct, except with the previous permission of the Labour Court."
' He, therefore, was of the view that it was a prerogative of Labour Court to grant permission in such a case, where any industrial dispute is pending and without getting permission, no office-bearer can be terminated or dismissed and in the present case neither dismissal nor termination has been effected. He has further submitted that this complaint has been filed at premature stage as no any action has taken by the respondents and the complainant has unnecessarily approached this Bench of Commission.
5. (sic) I have considered the arguments and have gone through the relevant record.
6. (sic) Admittedly the main petition is pending before this Bench of Commission and vires of unfair labour practice is to be examined at trial. However, law provides that an employee even an office- bearer of C.B.A. Can be terminated or dismissed with prior permission of the Labour Court concerned.
7. (sic) Moreover, while confirming the interim stay order in earlier petition the observation given was tentative and was not final. While approaching the Labour Court for getting permission for dismissing the complainant the respondents have adopted a legal course and their that act does not fall within the ambit of unfair labour practice. Accordingly this complaint merits no consideration which is hereby dismissed.