MUNIB AKHT AR, J.--- By this common judgment, we intend disposing off the petitions listed in para 19 below . The petitions arise in circumstances shortly to be stated. The material facts in relation to each petitioner are essentially the same. On 05.03.2015, learned counsel for the contesting respondent (K-Electric) had stated that he would argue the matter on legal grounds and did not need to file para-wise reply/comments. In the circumstances it is therefore not necessary to give the facts of each petition with particularity; a generalized description will suf fice.
2. The petitioners were, on respective dates, appointed as employees (i,e,, permanent workmen) of the contesting respondent, K-Electric (formerly known as KESC) the power utility company of Karachi (herein after referred to as "the respondent"). They were provided with residential accommodation by the respondent. The petitioners aver that they were engaged in trade-union activities in a lawful manner and as per their right under labor laws. This however , was not acceptable to the respondent and, especially , to the new management after its privatization.
Ultimately the petitioners services were terminated. The termination notices were issued on various dates in February , 2012. Being aggrieved by such action, and regarding it as an unfair labor practice within the meaning of the (Federal) Industrial Relations Act, 2012 ("2012 Act"), the petitioners filed grievance petitions before the National Industrial Relations Commission ("NIRC") as constituted and established under that statute. Those petitions are still pending. In the meanwhile the respondent gave notice to the petitioners to vacate the residential accommodation that was being occupied by them. The petitioners' case is that along with the griev ance petitions they had applied for interim relief. The NIRC (through various orders) has been pleased to grant such relief (in almost all cases) by way of directing the respondent to maintain status quo in respect of the residential accommodation. The petitioners submit that notwithstanding such orders, the respondent filed complaints under Standing Order 16 of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 ("1968 Ordinance"). Post the 18th Amendment and the omission of the Concurrent Legislative List from the Fourth Schedule to the Constitution ("Concurrent List"), the 1968 Ordinance has become a provincial statute. In terms as provided in the aforesaid standing order (reproduced below , and herein after "S.0.16"), the concerned magistrate has directed the petitioners to vacate the residential premises occupied by them within a period of two months, failing which the SHO of the concerned police station has been directed to ensure their eviction. It is these orders (which are the same in all material respects) that are challenged and impugned by means of the present petitions.
3. The respondent contends that the petitioners were retrenched in the ordinary course and in accordance with law on account of their services having become redundant and/or surplus, since "non-core" activities had been outsourced. It was for this reason that their services were terminated, and not for trade union activities as wrongly alleged. Since the petitioners were no longer in employment; the respondent was entitled to have the residential premises vacated. When the petitioners failed to do so despite notices in this regard, recourse was had to the mechanism provided by S.0.16. The respondent and the petitioners were heard by the learned magistrate and lawful orders of eviction were made. Insofar as the proceedings before the NIRC under the 2012 Act were concerned, those are being contested by the respondent.
4. Before proceeding further , it will be convenient to set out S.0.16. As presently relevant, this provides as follows:
16. Eviction from residential accommodation.-- (1)
Notwithstanding the provisions of any law for the time being in force, including those of the West Pakistan, Urban Rent Restriction Ordinance, 1959 (W.P. Ordinance No,VI of 1959), a workman occupying residential accommodation provided by his employer , who has resigned or retired, or has been retrenched, discharged or dismissed; or whose services have been terminated, shall vacate such accommodation within a period of two months from the date of his retrenchment, discharge, dismissal or termination of services, as the case may be; provided that in case of reinstatement of the workman, the employer shall be bound to provide him with similar residential accommodation from the date of such reinstatement or pay him per mensem an allowance in lieu thereof at the rate of three times the wages of the last full working day.
(2) If a workman, who has been retrenched, discharged or dismissed, or whose services have been terminated, fails to. Vacate any residential premises provided by the employer , within the period specified in clause (1), the employer may lodge a complaint with a magistrate of the first class having jurisdiction in the area where such residential accommodation is located.
(3) The magistrate on hearing the parties, may, notwithstanding anything Contained in any other law for the time being in force, summarily decide the case and may pass an order of eviction, giving the workman a reasonable time to vacate the premises.
(4) Where a magistrate passes an order for the eviction of a workman, he may also pass an order directing a police officer to evict such workman and any other person occupying through such workman the residential accommodation in respect of which the order of eviction is made, if the workman or such other person fails to vacate the accommodation within the time allowed under clause (3).
(5) A police officer acting under an order of the magistrate under Clause (4), shall notify the occupants of the premises in question the contents of the Magistrate's order and his intention to enter on such premises, and shall allow at least two hours' time to the occupants to vacate the premises and shall give all reasonable facilities to the children and female occupants, if any, to withdraw therefrom before applying any force for taking over the possession of such premises...."
5. At the conclusion of the hearing, we allowed learned counsel to file written synopses and both did so, along with certain material/case law sought to be relied upon.
6. Learned counsel for the petitioners stated the facts substantially as above and submitted that since written replies/comments had not been filed, the averments made by the petitioners had to be accepted for present purposes. It was submitted that the interim orders made by the NIRC continued to hold the field. The learned magistrate was informed of the said interim orders. Learned counsel submitted that in view thereof, the complaints could not have been filed but that in any case the learned magistrate ought not to have proceeded with the hearing of the same. At most, he ought to have directed the parties to have the proceedings pending before the NIRC adjudicated upon. Learned counsel submitted that by reason of section 87 of the 2012 Act, which had overriding effect, jurisdiction in the matter vested in the NIRC and the learned magistrate could not have taken any action under the 1968 Ordinance. In this connection, reference was also made to various other sections of the 2012 Act to contend that since the action of termination of the petitioners' services constituted an unfair labor practice, no court or forum other than the NIRC could take cognizance of any aspect of the matter . The proceedings before the learned magistrate were therefore without jurisdiction. It was further submitted that NIRC had been expressly conferred power by the 2012 Act to make interim orders, and the interim orders being relied upon were thus in proper exercise of a jurisdiction conferred by statute. Learned counsel further submitted that the scope of the 1968 Ordinance was limited and the petitioners did not come within the ambit thereof, insofar as was presently relevant.
In particular , the 1968 Ordinance. Did not apply in respect of unfair labor practices, which was the grievance of the petitioners. Without prejudice to the foregoing, learned counsel submitted that S.0.16, as well as Sanding Order 12, if at all applicable had to be read harmoniously with the 2012 Act and in conformity with the latter statute. On such basis, learned counsel submitted that S.0.16 applied only where a workman was dealt with in terms of Standing Order 12 and not otherwise. Since the petitioners' case came within the scope of the 2012 Act, action under S.0.16 was unlawful. Learned counsel prayed that the impugned orders be quashed.
7. Learned counsel for the respondent submitted that the services of the petitioners had been validly and properly terminated in accordance with law. The allegation of unfair labor practice was but an afterthought on the part of the petitioners and an attempt to continue to unlawfully hold on to the residential accommodation. S.0.16 constituted an independent and self contained code, which had to be applied in its own terms. The petitioners came fully within the scope thereof. Reliance on other statutes or provisions was incorrect. It was submitted that the power conferred on NIRC to make interim orders was limited to the four corners of the 2012 Act itself, i,e,, with reference to its various provisions and with regard to matters that were, or could be brought before, the NIRC. The situation at hand, namely the petitioners' failure to vacate the residential accommodation was outside the scope of the 2012 Act and hence the interim orders of NIRC could not have any relation thereto or effect thereon. That matter was regulated wholly by S.0.16 and the magistrate had ample jurisdiction to make the orders impugned by the petitioners. It was further submitted that the question of an unfair labor practice could only be raised by a workman while in actual employment and not thereafter . In the present case, the petitioners' services had been relieved before they had filed their so-called grievance petitions. Thus, NIRC had no jurisdiction to make any orders, including the interim orders being relied upon by the petitioners. Learned counsel also contended that the industrial relations regulated by the 2012 Act (and similar legislation) did not confer any statutory rights or benefits on any employee. Statutory benefits were only as and to the extent set out in the 1968 Ordinance. It was emphasized that the provision of residential accommodation was not a statutory benefit. It was not a right guaranteed or secured to any workman (including the petitioners) under any taw, award or settlement. To the extent that such accommodation was made available to any workman, it was simply a matter between the employer and the employee, and as provided for in S.0.16, action could be taken against an emplo yee who continued to unlawfully hold on to the accommodation. Learned counsel submitted that the petitions were wholly without merit and ought to be dismissed.
8. We have heard learned counsel as above, examined the record and considered the material and case law relied upon. Before proceeding further , certain prefatory remark's are necessary . Prior to the 18th Amendment, matters in respect of labor were included in the Concurrent List (see entry Nos.26 to 28). Thus, Parliament had ample legislative ,ompetence to make laws in relation to labor , and existing laws (as defined in Article 268) that in pith and substance related to any of the aforesaid entries also came within the federal domain. The 1968 Ordinance, being an existing law that was in its pith and substance so related, was thus within the federal legislative competence.
The Concurrent List was omitted by .The 18th Amendment, with the result that all laws in force when the said Amendment became effective that, in pith and substance came or fell within the scope of any of the entries of the said List became provincial laws (subjec t to certain savings and transpositions not presently relevant). The 1968 Ordinance thus became a provincial law, effective as such in each Province. Of course, in respect of the Islamabad Capital Territory , it continued to remain (like all other laws that in pith and substance came or fell within the scope of any of the entries of the Concurrent List) a federal law by reason of Article 142(d).
9. When the 2012 Act was enacted, its constitutionality was challenged on the ground that it was beyond Parliament's legislative competence, being in pith and substance a law that would have come within or relate to the aforementioned entries of the erstwhile Concurrent List. A learned Full Bench of this Court, in KESC and others v.
NIRC and others 2015 PLC 1, however held that the Act was constitu tionally valid. (A large number of petitions were disposed off by a common judgment.) We understand that this decision is under appeal before the Supreme Court. However , pending the decision of the Supreme Court, we must proceed on the basis that the 2012 Act is a valid piece of legislation. As presently relevant, there are thus two statutes in the field. One, the 2012 Act, is a federal law. The other , the 1968 Ordinance, is (now) a provincial law. The common legislative space (or field) that was previously available by reason of the Concurrent List is no longer in existence. As can be readily appreciated, in the post 18th Amendment scenario the interface or interaction of federal legislation on the one hand and provincial legislation on the other , with both operating on a subject-matter that can potentially , or does, overlap in relation to any of the entries of the erstwhile Concurrent List raises issues of great complexity and constitutional importance. In principle, the interaction of the 2012 Act and the 1968 Ordinance can involve such issues. Those issues were however not touched upon or raised before us by learned counsel and we do not therefore consider it appropriate to address the same in this judgment. The reason why we have mentioned this point is, in part, to clarify that (subject always to the decision of the Full Bench and of the Supreme Court in the pending appeals) these issues are being left open for another day. Nothing said herein is intended to affect, or should be regarded as affecting, any such consideration.
10. When section 87 of the 2012 Act, on which reliance was placed by learned counsel for the petitioners and which provides that the Act is to have effect "notwithstanding anything to the contrary contained in any other law for the time being in force", is considered in light of the foregoing, it is clear that the section does not apply to the 1968 Ordinance, as presently relevant. A federal law, by means of a non-obstante clause of the nature as section 87, can only override a law that is within Parliam ent's legislative competence, whether by reason of Article 142 or some other provision of the Constitution. The 1968 Ordinance is certainly a law that can be affected by section 87 insofar as its operation in the Islamabad Capital Territory is, concerned because there it continues to remain and operate as a federal law. However , in the Province s, where it has become provincial legislation, section 87 cannot affect its operation. There, it is a law outside the. Legislative competence of Parliament and hence its provisions cannot be overridden by federal law, at least not by a non obstante clause such as section 87. To this extent therefore, the case sought to be made out by learned counsel for the petitioners cannot be accepted.
11. The first point to consider is whether the petitioners come within the definition of "workman" as given, respectively , in the 2012 Act and the 1968 Ordinance. As noted above, opposing stances have been adopted in this regard by learned counsel for the parties. Taking the 2012 Act first, section 2(xxxiii), as presently relevant, has the following definition: ""worker" and "workman" mean person not falling within the definition of employer ... And, for the purpose" of any proceedings under this Act in relation to an .Industrial dispute includes a person who has been dismissed, discharged, retrenched, laid off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay-of f, or removal has led to that dispute ...."
' As noted above, the case made out before the NIRC by the petitioners is that they were the victims of an unfair labor practice, and . That was the reason or basis for their removal from service. It appears that the petitions filed before the NIRC are under section 54(e) of the 2012 Act, which confers jurisdiction on the latter in respect of unfair labor practices. The petitioners' case would thus appear to be that there is an industrial dispute. Also as noted, no reply/para-wise comments have been filed by the respondent to the present petitions. Although the written synopsis filed by learned counsel for the respondent contains a description of each petitioner's case (as per the respondent), that is not the same thing as a reply/pare-wise comments. The petitioners' averments must therefore be accepted for present purposes, and we must here proceed on the basis that they have, as claimed, been dismissed or retrenched in connection with or as a consequence of an industrial dispute. That would bring them within the latter part of the definition in section 2(xxxiii). Therefore, the petitioners are to be regard ed as workmen for purposes or the present petitions within the meaning of the 2012 Act. The 1968 Ordinance defines "workman" in section 2(i) as meaning "any person employed in any industrial or commercial establishment to do any skilled or unskilled, manual or clerical work for hire or reward". The petitioners clearly come within this definiti on: It follows from the foregoing that for purposes of the present petitions the petitioners must be regarded as coming within the scope of both the 2012 Act and the 1968 Ordinance.
12. This brings us to the nub of the matter . If the petitioners come within scope of the 1968 Ordinance, then S.0.16 applies to them, in which case the magistrate concerned did have the jurisdiction to make the impugned orders.
The petitioners however rely on the interim orders made by NIRC under the 2012 Act. As just noted, they also come within the scope of this statute. What needs to be considered therefore is the nature and scope of the interim orders. More precisely , what is the power to make an interim order under the 2012 Act, and how does it interact with S.0.16 of the 1968 Ordinance? Section 57(2) of the 2012 Act provides, as presently relevant, as follows: "[t]he Commission may, on the application-of a party , or of its own motion,... (c) grant such relief as it may deem fit including interim injunction". As noted above, in almost all the petitions, there are interim orders on the record where the NIRC has directed that status quo be maintained in respect of the residential accommodation. Learned counsel for the respondent contended that the power conferred by section 57(2)(c) operates only within the four corners of the 2012 Act and does not apply in respect of any matter not within its remit. Hence, it was submitted, the interim orders did not apply in relation to S.0.16. Having considered the point we are, with respect, unable to agree. We come to this conclusion for three reasons. Firstly , in our view, the scope of section 57(2)(c) is, on the face of it, not restricted in the manner suggested by learned counsel for the respo ndent and we see no reason to limit it so. The language of the clause is open-ended and is clearly intended to grant full power to the NIRC to make such order , including an interim order , as best meets the interests of justice in the facts and circumstances of the case before it. Whether the NIRC has properly exercised the power is of course something to be ultimately decided in the proceedings before the NIRC itself and/or in any proceedings, arising directly out of its decision. However , it is not for us, in these proceedings, to delve into this aspect. What we are concerned with is only whether , in law, the NIRC has the power to make the interim orders relied upon by the petitioners . If a workman/employee raises before the NIRC a grievance of dismissal on account of an unfair labor practice, does it have the power to make an interim order directing the employer to maintain status quo with respect to any residential accommodation that may have been provided to the employee? In our view, keeping in mind the broad terms in which section 57(2)(c) is expressed, the answer to this question ought to be in the af firmative.
13. Secondly , it is to be noted that the interim order is, in personam. It is directed towards the respondent and not, e.g., the magistrate exercising jurisdiction under 5.0.16. Had the NIRC purported to direct its order against the magistrate or (e.g.) the police officer acting in terms of clause (4) or (5) of the Standing Order , it would clearly have been beyond jurisdiction. But that is not the case. The order is directed only towards the parties before the NIRC, being the petitioners on the one hand and the respondent on the other . This is important because, thirdly , S.0.16 is neither mandatory in nature nor does it come into operation automatically . It is only permissive. It simply gives an option to the employer , should he choose to exercise it. An employer placed similarly to the respondent may choose never to invoke S.0.16. Since recourse to the standing order is entirely voluntary and optional, it follows that an employer who is injuncted by a court or other authority exercising jurisdiction under , any law from removing an employee from residential accommodation provided by the employer cannot have the advantage of S.0.16.
Such an order , operating in personam, would prohibit and disentitle the employer from resorting to the option available under the standing order . Recourse by the employer to the standing order contrary to such an interim order would be an unlawful breach thereof.
14. It further follows from the foregoing that when the magistrate was apprised of the existence of the interim orders by the petitioners, he ought to have stayed his hand. At most he ought to have directed the parties to proceed with the petitions pending, before the NIRC. In our view, the learned magistrate fell into serious legal error in continuing with the proceedings under 5.0.16. He ought not to have, in effect, aided the respo ndent in its disobedience of the interim orders made by NIRC. (We may add that this was only because the learne d magistrate fell into legal error; we impute no other motive or malice to him.) A perusal of the impugned orders shows that the learned magistrate was much influenced by the non obstante clause with which clause (1) of 5.0.16 opens. He also relied on a decision of a learned Division Bench of this Court, Atta Muhammad and others v. Modern Textile Mills (Pvt.) Ltd.
2004 PLC 137, to buttress his order . The learned magis trate has observed that that case presented an "identical situation". With respect, we are unable to agree. Firstly , the case relied upon was decided in 2003, i,e,, much before the 18th Amendment and the 2012 Act. Thus, the legal framework could not possibly be the same.
Secondly , a perusal of the cited decision shows that although a reference was made by the petitioners therein to a suit pending in some civil court, it was not claimed that there was any interim order against the employer in that litigation nor was such order relied upon. We emphasize the point that has escaped the learned magistrate entirely: recourse to S.0.16 is at the volition of the employer and if there is an interim order in personam against him, then the E employer cannot be allowed to violate the same and proceed under the standing order . Insofar as the non- obstante provision of clause (1) is concerned, it had no effect in respect of the interim orders made in the exercise of a power conferred by a federal law (i,e,, the 2012 Act) for the reasons. (now operating in reverse as it were) already given above in relation to the non ohstante clause contained in section 87 of the 2012 Act.
15. The learned magistrate also relied on a decision of the Islamabad High Court reported as Capital Development Authority v National Industrial Relations Commission 2012 PLC 236. With respect, that decision had no relevance at all for the facts and circumstances before the learned magistrate. In the case relied upon the concerned employee (of CDA) had been provided residential accommodation, which he continued to hold after retirement. It appears that after retirement he was entitled to a certain "grace period", which was granted by CDA. When the grace period was about to expire he filed a suit in the civil court and obtained an interim order . That order was not however extended by the court, and an appeal against such refusal was dismissed. It was then that the son of the retired employee approached NIRC and was granted interim relief. Thereafter , the matter remained pending before the NIRC. Subsequently , another suit was filed in the civil court by yet another family member (by marriage) of the retired employee although in that suit interim relief was refused. It was in such circumstances that the CDA petitioned the High Court against the interim order made by N1RC. The High Court , for the reasons stated in paras 7 and 8 (and unsurprisingly), vacated the interim order . As the foregoing narration shows, the facts and circumstances of the case were totally different from those of the present petitioners, as pleaded before the learned magistrate. In our view, the learned magistrate has committed a serious error of law in relying on the decision. It is also pertinent to note here that a "complaint" under S.0.16 is not a complaint within the meaning or contemplation of the Code of Criminal Procedure. The "complaint" is only a procedural device to enable summary proceedings to be launched and expeditiously concluded.
16. Before proceeding further , a word may also be said regarding S.0.16 on which, quite understandably , much emphasis was laid by learned counsel for the respondent. One aspect of this standing order , namely its voluntary and permissive nature, has already been noted above. The other aspect that needs to be noted is the position, generally , of standing orders under the 1968 Ordinance. Section 3 provides that the conditions of employment of workmen and other incidental matters in every industrial or commercial establis hment are, subject to the other provisions of the Ordinance, to be regulated in accordance with the standing orders, More interestingly , section 4 allows for the modification of the standing orders. It provides: "The Standing Orders may be modified by means of a collective agreement and not otherwise: Provided that no such agreement shall have the effect of taking away or diminishing any right or benefit available to the workmen under the provisions of the Schedule". Section 8 permits the Government to exempt any particular , or class of, industrial or commercial establishment from the provisions of the Ordinance, which obviously includes the standing orders. There is therefore nothing special about S.0.16. An exemption can be given to anyone from this standing order and it may even, subje ct to the proviso, be modified by a collective agreement. These provisions serve to emphasize what has been said above regarding the voluntary and permissive nature of S.0.16 and it being only a procedural device for the benefit of the employer , which he can choose not to exercise at all, or agree to exercise in such modified form and manner as may be agreed upon.
17. Although learned counsel for the respondent in his submissions, and more fully in his written synopsis, has taken issue with the grievance petitions filed by the petitioners before the NIRC and has sought to examine the position under various provisions of the 2012 Act. (including, in particular , sections 31 to 33) and has also dilated upon the term "trans-provincial" establishment as used in the statute, these are all matters with which we are not concerned. The remit of the present petitions is narrowly circumscribed. It is only to consider whether the impugned orders of the learned magistrate are in accordance with law or suffer from any material errors. The points just noted are properly to be taken up by the respondent before the NIRC and/or in proceedings emanating directly from any decision made by it. It is not for us to consider these points in these petitions. However , we may clarify (with some emphasis) that the respondent is at full liberty to raise all such (and any other) points in the proceedings before the NIRC, and the latter shall decide those points (and the points taken by the petitioners before it) uninfluenced by anything said in this judgment.
18. As is clear from the foregoing, we conclude that the impugned orders of the learned magistrate suffer from material and serious errors of law. At the same time, it is also clear from those orders that the only defense made out by the petitioners was on the basis of the interim orders of the NIRC. If such interim orders were not in the field, then the petitioners would essentially have had no defense before the learned magistrate. In such circumstances, although the learned magistrate did fall into serious legal error by, e.g., relying on the two judgments noted in the impugned orders, it could have been the case that his orders would have been allowed to stand. Having considered the point, in our view while the petitioners are entitled to relief in these petitions, such relief has to be molded and tailored in the manner as set out below .
19. This judgment shall apply to: C.Ps. Nos. 173, 174, 175, 176, 177, 178, 230, 231, 232 and 233, all of 2015.
20. These petitions are disposed of f in the following terms: a. In all those petitions in which NIRC had made interim orders directing that status quo be maintained in respect of the residential accommodation, the impugned order of the learned magistrate is stayed and suspended subject to what is further stated below . b. Any petitions in which there were no interim orders of the NIRC are hereby dismissed. c. If the proceedings pending before the NIRC conclude in favor of a petitioner whose case cones within sub-para (a), the impugned order made against such petitioner shall then be deemed to have been quashed and set aside. d. If the proceedings pending before the NIRC conclude adversely to or against a petitioner whose case comes within sub-para (a), the impugned order made against such petitioner shall be deemed to have become operational and will then take effect on its own terms. e. If a question arises as to whether , for purposes of this para 20, the proceedings pending before the NIRC have concluded in favour of or adversely to a petitioner , then such petitioner or the respondent (as the case may be) may file an application in the relevant petition, which will be decided by the Court by making such order , consistently with this judgment, as is deemed appropriate. f. If any of the proceedings pending before the NIRC do not conclude within nine months from today then the petitioner or the respondent shall be at liberty to file an appropriate application in the relevant petitio n, on which the Court will make such order , consistently with this judgment, as is deemed appropriate.
21. There will be no order as to costs.