KHADIM HUSSAIN M. SHAIKH, J--- Through this petition, the petitioner has called in question order dated 22.06.2016, passed by the respondent No.2 namely the Member, National Industrial Relations Commission (NIRC) Bench at Sukkur and order dated 28.07.201.6, passed by the learned Full Bench, National Industrial Relations Commission (NIRC) Islamabad, (not party, herein after will be referred to as the Commission for the sake of brevity), dismissing the appeal filed on behalf of the petitioner company against the aforementioned order dated 22.06.2016 of the respondent No.2.
2. The learned counsel for the petitioner has mainly contended that the petition before the Respondent No.2, filed by the respondent. No.1 and others is not maintainable; that the impugned order dated 22.06.2016, passed by the respondent No.2 and the order dated 28.7.2016, passed by the Commission dismissing the appeal, filed on behalf of the petitioner against the aforesaid impugned order dated 22.06.2016 of the respondent No.2, are illegal and not sustainable, and, he therefore, prays that the same may be set-aside. He has placed his reliance on the cases of Muhammad Anwar and others v. Mst. Ilyas Begum and others (PLD 2013 SC 255), Wagar Ali and others v. The State (PLD 2011 SC 181), Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others (PLD 1987 SC 447), Sindh Employees' Social Security Institution v. Dr. Mumtaz Ali Taj and another (PLD 1975 SC 450) and Syed Ali Abbas and others v. Vishan Singh and others (PLD 1967 SC 294).
3.For the sake of convenience, the impugned order dated 22.06.2016, passed by the respondent No.2, is reproduced here, which reads as under:- "ORDER 22.06.2016 The learned counsel for petitioner has submitted that petitioner is a workmen and he is also Vice President of sitting CBA and fully authorized by the President of the Union/CBA. He next contended that a Charter of Demands submitted by the CBA union containing therein number of demands which were settled/agreed between the petitioner union and respondent management. According to settlement clause 9.1 all the regular employees will be entitled to get 25% increment in basic pay scale with effect from 07.02.2015 and under class 12-R the work charge and casual employees are entitled as per settlement agreement as agreed by the Board of Director meetings No. 175 dated 16.06.2016. But all of sudden the respondent issued letter dated 15.06.2016 with mala fide without consulting the petitioner whereby the increment of the petitioner was freezed, which was against the settlement agreement not only but the respondent has committed the breach of agreement and they are liable to be penalized. He further contended that if the impugned letter No.AAO 102-06 dated 15.06.2016 on the basis of BODs 183rd meeting held on 15.06.2016 is not suspended the petitioner/workers will suffer an irreparable loss and legal injury. The points raised by the learned counsel require consideration. Admit, issue to the respondents for filing the written statement in the main application as well as reply on Stay application. In the meanwhile the operation of the impugned letter No.AA0102-06 dated 15.06.2016 is suspended till next date. Come up on 04.08.2016."
4.The relevant paragraphs of the order dated 28.07.2016, passed by the commission are reproduced below:- We have heard the arguments of both the learned counsel and perused the record Admittedly the interim order has been passed by the learned Member on 22.06.2016 and the appellant has yet to file written statement and reply to stay application before the learned Single Member. All the legal points raised by the learned counsel for the appellant can be agitated before the learned Single Member where case is pending and this legal objection can be decided by the learned Single Member on merits where the case is already fixed for 04.08.2016.
6. In view of aforesaid reason, this appeal is not maintainable and the same is dismissed.
However, the learned Single Member is directed to dispose of stay application on merits expeditiously in accordance with law. The Registrar of this Commission is directed to transmit the record to the learned Single Member before 04.08.2016 positively. File be consigned to record."
5.Record reveals that on 25.08.2016 the learned counsel for petitioner was put on notice to satisfy the Court as to the maintainability of the instant petition with the directions to place on record copy of order/diary sheet dated 04.08.2016, passed by the respondent No.2. The learned counsel for the petitioner files a simple copy of the order sheet dated 04.08.2016 of the respondent No.2, which is taken on record and the same reads as under:- "ORDER 04.08.2016.
The learned counsel for petitioner has submitted application for rectification of order dated 22.06.16 copy of the same has been handed over to the representative for respondent. The learned counsel has also filed statement wherein he stated that the appeal against the impugned order dated 22.06.2016 was filed before full bench has been dismissed and parties were directed to file legal objection if any before this bench of Commission. Case is adjourned to 08.09.2016 status quo shall continue."
6.From the above it would be seen that the impugned order dated 22.06.2016, suspending the operation of impugned letter dated 15.06.2016, issued on behalf of the petitioner company, till the next date viz. 04.08.2016, was passed by the respondent No.2 and the appeal filed against such an order, which was operative till next date of hearing, was dismissed by the Commission being not maintainable with the directions to the respondent No.2 to dispose of the stay application on merits expeditiously in accordance with law, advising the petitioner company to agitate all the legal points raised by the learned counsel for the appellant (petitioner) before the respondent No.2 where the matter was already fixed on 04.08.2016 for filing the written statement and reply to the stay application, which is now fixed for 08.09.2016.
7.Record further reflects that the contempt proceedings have been initiated against the Management of the petitioner company for having allegedly violated the order, passed by the respondent No.2 as is revealed from the notice annexed as annexure P/18, which is available at page 877, issued to the alleged contemnors. On queries the learned counsel for the petitioner has conceded that the contempt proceedings, having been initiated against the Management of the petitioner company, are pending; and that nothing towards the progress of the case was done on behalf of the petitioner company as only an employee of the petitioner company showed his presence before the respondent No.2 on the date of hearing viz. 04.08.2016.
8.On the maintainability of this petition, the learned advocate has contended that the petition before the respondent No.2 is not maintainable and, per him, the impugned orders, passed by both the aforesaid Forums against the petitioner-company, are illegal and without any lawful authority, therefore, this petition is maintainable. We are not persuaded to agree with the learned counsel for the reasons firstly the impugned order dated 22.06.2016, passed by the respondent No.2, from face of it, is a provisional in nature effective till the next date and no final order has been passed and even the interlocutory application is pending before the respondent No.2, secondly, the petitioner has got an adequate remedy to challenge the final order, in case, order, if any, is passed against the .petitioner company even on interlocutory application, thirdly the question relating to the jurisdiction is to be raised before the Court or Forum seized with the matter either in the pleadings and/or by making a proper application, fourthly the Commission, while dismissing the appeal filed on behalf of the petitioner company against the impugned order dated 22.06.2016, directed the respondent No.2 to decide the interlocutory application on merits expeditiously in accordance with law, advising the petitioner company to raise and agitate all the points before the respondent No.2, but no effort was made on behalf of the petitioner company to place and agitate its case before the respondent No.2 and instead of doing so this petition has been filed, more so when contempt proceedings have been initiated against the Management of the petitioner company for having allegedly violated the order of the respondent No.2, fifthly no finding or observation has been given against the petitioner company either by the respondent No.2 or even by the Commission and in our humble view judicial scrutiny of the order of nature without any finding or observation cannot be made.
9.The cases, relied by the learned counsel for the petitioner being distinguished on facts and circumstances, are not applicable to the case one in hand in as much as that in case of Muhammad Anwar supra, an application under Order XVI, Rule 1, C.P.C. for summoning certain witnesses through the process of the Court, moved by the petitioners in a suit for declaration filed by the respondent No.1 against them was decided and ultimately the matter went in the Hon'ble Supreme Court of Pakistan, in case of Waqar Ali supra, the question of applicability of the provisions of Illegal Dispossession Act, 2005 and taking cognizance by the Court in a case, which was lacking mens rea on the part of the accused, was involved, in case of Utility Stores Corporation of Pakistan Limited supra, on the application moved by the appellant Institution before the respondent No.2 in that case, raising objection of lack of jurisdiction, an order was passed by the respondent No.2 and ultimately the matter went in the Hon'ble supreme Court of Pakistan, in case of Sindh Employees'. Social Security Institution supra, the matter was involving appointments of Medical Practitioners and set up of Medical Board supervising medical care to the secured persons in social security areas and in case of Syed ALI ABBAS supra, the question relating to the Evacuee Trust Property and decisions made by the Custodian Authorities were involved and thus none of the cases cited by the learned counsel for the petitioner is helpful for him.
10. In view of what has been discussed above, we are of the considered view that this petition is misconceived and not maintainable. Learned advocate for the petitioner has also not been able to satisfy the Court as to the maintainability of petition, therefore, this petition is liable to be dismissed.
11.Above are the reasons of short order dated 31.08.2016, announced by us whereby this petition was dismissed in limine with no order as to costs along with the pending application.