ABID HUSSAIN CHATTHA, J. This constitutional Petition is directed against the impugned Orders dated 03.11.2016 and 29.08.2018 passed by the learned Single Member and learned Full Bench, National Industrial Relations Commission (the "NIRC"), respectively.
2. The brief facts of the case are that the Petitioners and pro forma Respondents were hired by Respondent No. 3 which is a Multi-National company carrying on its business in Pakistan as a Trans-Provincial establishment through the medium of labour supplier contractors. The Petitioners along with pro forma Respondents filed Grievance Petitions and a joint complaint under various provisions of the Punjab Industrial Relations Act, 2010 (the "PIRA, 2010") before the Punjab Labour Court No. 9, Multan (the "Labour Court") seeking regularization of service. Status quo Orders were passed against termination during pendency of the Petitions.
3. During the pendency of the Grievance Petitions, Respondents Nos.3 and 4 attempted to terminate the services of the Petitioners against which the Labour Court passed Order dated 20.04.2012, whereby, the operation of termination Orders were suspended. Respondents Nos.3 and 4 approached the NIRC Bench at Lahore seeking withdrawal of cases from the Labour Court and obtained a stay Order regarding the pending proceedings before the Labour Court. The Petitioners filed Writ Petition No. 9856 / 2012 against the Order dated 23.04.2012 passed by the NIRC which was suspended by this Court. Non-compliance of the Order also led to filing of a Contempt Petition before this Court. Meanwhile, the Transfer Application before the NIRC was withdrawn on 25.07.2012 by Respondents Nos. 3 and 4 and thereafter, the Order dated 23.04.2012 ceased to exist as the said Petition was disposed of having become infructuous by this Court vide order dated 12.09.2012 with the observation that the issues raised in the Petition can be agitated before the Labour Court after the Order dated 06.06.2010 is set aside. The Labour Court vide Order dated 10.11.2012, returned the Grievance Petitions under Order VII, Rule 10 of the Code of Civil Procedure, 1908 for their presentation before proper forum on the ground that after promulgation of the Industrial Relations Act, 2012 (the "IRA, 2012"), it has no jurisdiction to adjudicate upon the Grievance Petitions which are against a Trans-Provincial Company. Against the said Order, the Petitioners filed an Appeal under Section 46(3) of the PIRA, 2010 before the Punjab Labour Appellate Tribunal, Multan (the "PLAT"). On 23.11.2012, it was ordered that the Presiding Officer of the Labour Court will take back Grievance Petitions returned to the Petitioners and will keep these pending till the final decision of the Appeal by the PLAT. When this Appeal was pending, a Transfer Application was filed by the Petitioners before the NIRC in view of case titled "Pakistan Telecommunication Company Ltd. v. Member NIRC and others" (2014 SCMR 535) which conclusively held that the jurisdiction to decide the Grievance Petitions against a Trans-Provincial establishment vests with the NIRC under the IRA, 2012. On 04.08.2014, the Member of the NIRC passed a judicial Order to the effect that in view of the Pakistan Telecommunication Company case (supra), the record of the cases be requisitioned from the Labour Court: This was followed by a letter dated 12.08.2014 written by the Deputy Registrar (Judicial) of the NIRC to the Superintendent of the Labour Court seeking to requisite the aforesaid cases to the NIRC pending before the Labour Court.
4. Meanwhile, some of the Petitioners filed a Civil Revision against the Order dated 06.06.2012 passed by the Labour Court, whereby, hundreds of cases were sine die adjourned after the promulgation of the IRA, 2012. The PLAT vide Order dated 12.10.2012 held that in order to decide as to whether the Respondent Company is a Trans-Provincial establishment or not, it is necessary to record evidence therefore, while accepting the Civil Revision, the Labour Court was directed to take up the cases of the Petitioners, record evidence in this behalf and pass fresh Order after hearing the parties. After this remand Order, on 18.10.2012, the Petitioners with other co-workers filed an Application for restoration of their Grievance Petitions in the light of remand Order before the Labour Court. However, the Labour Court did not take action on the joint complaint, rather, directed the parties to record their evidence on the issue of Trans-Provincial status of the Respondent establishment. Eventually, the individual Grievance Petitions filed by the Petitioners were returned for presentation before the proper forum. This Order was assailed in Appeal by the Petitioners before the PLAT which met the same fate on 30.09.2015. It was held on the basis of Pakistan Telecommunication Company case (supra) that the jurisdiction to agitate Grievance Petitions regarding Trans-Provincial establishment vests with the NIRC and as such, the original Order, dated 10.11.2012 passed by the Labour Court was in accordance with law.
5. Thereafter, the Petitioners submitted an Application before the Labour Court for sending of their files / record to the. NIRC in terms of its letter No. 147 dated 18.08.2014 in which it was categorically disclosed by the Petitioners that their cases were returned on 10.11.2012 by the Labour Court and their Appeals were pending before the PLAT. The Labour Court passed the Order dated 27.10.2015 which is as under:- "The original case file has been requisitioned by the learned NIRC vide letter dated 12.08.2014 in view of the Judgment passed by the Hon'ble Supreme Court of Pakistan in C.A. No.407 / 2013. Let original record be sent to learned NIRC, Islamabad Bench at Lahore immediately. Copy of this Order along with copy of Application moved by Muhammad Irshad etc, Applicants / Petitioners be annexed to the original record of the Petitions and original record of the Application is consigned to the record room."
6. In view of the above background and complex facts, the Member of the NIRC passed the impugned Order dated 03.11.2016, whereby, he reviewed his earlier Order dated 04.08.2014 and recalled the same by directing that files be sent back to the Labour Court if the same have been received back pursuant to the said earlier Order of the NIRC for compliance of the Labour Court Order dated 10.11.2012 and upheld by the PLAT vide Order dated 30.09.2015 for the reason that the Petitioners while procuring earlier Order dated 04.08.2014 had concealed the pendency of their Appeals before the PLAT. This prompted the Petitioners to file Writ Petition No. 16695 / 2016 before this Court by assailing the impugned Order dated 03.11.2016 and seeking restoration of the NIRC Order dated 04.08.2014. This Writ Petition was disposed of by this Court vide Order dated 29.05.2017 in the following terms:- "When confronted with reference to Section 58(2)(b) of the Industrial Relations Act, 2012, which provides an appeal in case of any decision passed by a Single Member of National Industrial Relations Commission, learned counsel for the Petitioner requests for transmission of this Writ Petition to the Commissioner to be treated the same as an Appeal in view of Section 58 (2) (b) of the Industrial Relations Act, 2012.
Office after retaining the copies of this Petition and annexures thereto with it will remit the original Writ Petition to National Industrial Relations Commission, Islamabad, where the same be treated as an Appeal within the meaning of Section 58 (2) (b) of the Industrial Relations Act, 2012 subject to all just and legal exceptions and any objection to be raised by the Respondents before the Commission. Disposed of."
Learned Full Bench of the NIRC vide impugned Order dated 29.08.2018 dismissed the Appeal of the Petitioners being barred by time. Hence, this Petition.
7. Learned counsel for the Petitioners contended that the Petitioners have so far failed to enforce their basic right to get adjudicated their Grievance Petitions in accordance with law. He further contended that the impugned Order dated 03.11.2016 was without jurisdiction, void and coram non judice for the reason that it was based upon a completely wrong, fact attributed to the Petitioners regarding concealment of their pending Appeal before the PLAT. It was on account of this fact that earlier Writ Petition No. 16695 / 2016 was filed before this Court However, this Court was pleased to treat the same as an Appeal and transmitted it to the Full Bench of the NIRC for adjudication on its own merits. However, the Full Bench, NIRC instead of adjudicating it on its merits, dismissed the same on the ground of limitation, thereby, depriving the Petitioners from their right to adjudicate the Grievance Petitions and joint complaint on merits in accordance with law.
8. Conversely, learned counsel for the Respondents argued that the Writ Petition was converted into Appeal subject to all just and legal exceptions which included the plea of limitation. The Respondents were well within their right to take the objection of limitation before the Full Bench of the NIRC which rightly held that the Appeal was barred by time since it is trite law that proceedings initiated at wrong forum does not stop limitation and is also not a ground to, condone, limitation, especially, when no application under Section 5 of the Limitation Act, 1908 was filed under the IRA, 2012.
9. Arguments heard. Record perused.
10. From the above facts it is evident that the Petitioners sought regularization of their employment by filing Grievance Petitions and joint complaint but have remained unsuccessful in their endeavor for their decision on merits in accordance with law since 2010. It is also evident that their Grievance Petitions were resisted on the issue of jurisdiction with respect to Trans-Provincial status of the Respondent establishment which was eventually settled by the Hon'ble Supreme Court of Pakistan in Pakistan Telecommunication Company case (supra) in terms of the IRA, 2012. When the issue of jurisdiction was conclusively settled, the Member, NIRC initially lawfully passed Order dated 04.08.2014 requisitioning the record of the cases from the Labour Court. However, vide impugned Order dated 03.11.2016, it recalled the same while deciding an application of the Petitioners seeking implementation of Order dated 04.08.2014.
11. The operative part of the impugned Order dated 03.11.2016 contained in paragraphs Nos. 4 and 5 is reproduced below:- "4. The appeals of the petitioners were contested and vide order dated 20.09.2015, the order passed by the Punjab Labour Court No. 09, Multan, was upheld. It means that the petitions were to be returned by the Presiding Officer, due to lack of jurisdiction. During the pendency of appeals, petitioner filed an application before NIRC, concealing the fact of pendency of appeals before Punjab Labour Appellate Tribunal and obtained the order dated 04.08.2014 for the withdrawal of above said grievance petitions pending before Punjab Labour Court No. 09, Multan. Infact, if the petitioner would have disclosed the true facts to the learned Member, NIRC (My Predecessor), regarding the pendency of the appeals pending before Punjab Labour Appellate Tribunal, then the order dated 04.08.2014 would not have been passed. It was mandatory for the petitioners to withdraw the appeals and then to, receive the petitions from the Punjab Labour Court No. 09, Multan for filing the same before NIRC. Petitioners have challenged the order dated 10.11.2012, before Punjab Labour Appellate Tribunal being aggrieved by the order passed by Presiding Officer Punjab Labour Court No.09, Multan, whereby, their grievance petitions have been returned and at the same time, they have filed an application before NIRC, under section 57(5) of IRA, 2012 for the withdrawal of the grievance petitions by concealing the fact that they have filed appeals which are pending before PLAT, Petitioners cannot blow hot and cold in same breath. Moreover, it is settled principles of law that for the same cause of action two parallel proceedings before two different forums are not maintainable. Petitioners were legally bound to withdraw their appeals pending before Punjab Labour Appellate Tribunal and then after getting the grievance petitions from the. Punjab Labour Court No. 09, Multan, were legally bound to file the same before NIRC, because the Punjab Labour Court No. 09. Multan had no jurisdiction to entertain the same,
5. In view of the above discussion, as the petitioners have obtained the order dated 04.08.2014, by concealing the true facts therefore, they are not entitled for the discretional relief which they have prayed before NIRC, and obtained the order dated 04.08.2014. Therefore, the order dated 04.08.2014 is hereby re-called. The files be sent back to the Punjab Labour Court No. 09, Multan, if the same have been received by this office, for compliance of the order passed by the Punjab Labour Court No. 09, Multan dated 10.11.2012 and upheld by Punjab Labour Appellate Tribunal vide order dated 30.09.2015."
12. It is apparent from the above, that the impugned Order dated 03.11.20216 was without jurisdiction for the reason that in paragraphs Nos. 12 and 13 of the referred Transfer Application, the Petitioners had expressly stated as follows:- "12. That on 10.11.2012 the respondent No.1, Labour Court, Multan, returned 889 cases of the workers including the grievance petitions of the petitioners also on the ground of trans-province establishments. The petitioners challenged the said order on 23.11.2012 before the Punjab Labour Appellate Tribunal and the learned Punjab Labour Appellate Tribunal passed the stay order as under: "Meanwhile learned presiding officer, Punjab Labour Court No.9, Multan will take back grievance petitions returned to the petitioners and will keep these pending till the final decisions of this appeal by this court"
13. That in view of the order passed by the Punjab Labour Appellate Tribunal, the grievance petitions 'of the petitioners are pending adjudication with respondent No.1 "
13. Hence, not only that there was no concealment on the part of the Petitioners regarding the pendency of Appeal before the PLAT but even otherwise, jurisdiction conferred by law cannot be ousted by the parties or the Court. This is especially so when Section 57(2)(b) stipulates that the NIRC may, on the Application of a party or of its own motion withdraw from a Labour Court of province any application, proceedings or appeal relating to unfair labour practice which falls within its jurisdiction. Thus, instead of invoking the powers conferred on the NIRC by law to the benefit and facilitation of the Petitioners, their grievance was, knocked down on technical ground on the attribution of concealment. Moreover, it was erroneously observed that the transfer of cases of the Petitioners ordered on 04.08.2014 was a discretionary relief. Infact, it was mandatory under the IRA, 2012 to adjudicate matters falling under its exclusive jurisdiction. As such, the impugned Order dated 03.11.2016 was inherently illegal, unlawful, void and coram non judice.
14. The next aspect of the case pertains to the Order dated 29.05.2017 passed in Writ Petition No. 16695/2016, whereby the Petition was converted into an Appeal and transmitted to the Full Bench of the NIRC for its adjudication subject to all just and legal exceptions. It is noted that the said Writ Petition was filed on 22.11.2016 against the impugned Order dated 03.11.2016 which was within the period of limitation of (30) days prescribed for filing of an Appeal under Section 58(1) of the IRA, 2012. When this Petition was converted into an Appeal by this Court on 29.05.2017 to Full Bench of the NIRC, it ought to have been decided on merits rather dismissing the same on the ground of limitation for otherwise, there was no point in converting the same into the appeal and transmitting it to the Full Bench of the NIRC. In this behalf, Reliance is placed on the case, titled "Muhammad Akram v. DCO, Rahim Yar Khan and others" (2017 PLC (C.S.) 692). Paragraph No. 9 of the said Judgment is quoted as under:-- "As noted above the DCO Rahimyar Khan, decided the Writ Petition No. 5412 of 2014 treating it as Departmental Appeal, on merits as ordered by the Bahawalpur Bench of the Lahore High Court, but at the same time held "that no departmental appeal under section 16 of PEEDA Act, 2006 has ever been filed by the Petitioner", which observation under given facts and circumstances was uncalled for. Apparently it is last mentioned observation of the Departmental Appellate Authority, which influenced the PST to dismiss the Service Appeal as barred by time. Once the Writ Petition, which was filed within the period of limitation as provided for the departmental appeal, was treated and remitted by the High Court as Departmental Appeal. that too when the limitation by than had not ran out as noted above. Learned PST, had fallen in to error to dismiss the Appeal before it on the ground of limitation alone, without adverting to the merits of the case as were attended by the DCO Rahimyar Khan. As noted above date of filing of the writ petition within time should have been reckoned as date of Departmental Appeal and ought to have been treated as Departmental Appeal for all practical purposes as ordered by the High Court"
Hence, it is clear that the Full Bench, NIRC fell in error to dismiss the Grievance Petitions / joint complaint of the Petitioners being barred by time.
15. In view of the above, this Writ Petition is allowed; and the impugned Orders dated 03.11.2016 and 29.08.2018 are set aside. Consequently, the Grievance Petitions / joint complaint of the Petitioners shall be deemed pending before the Member, NIRC / Respondent No.2 who is directed to decide the same expeditiously, preferably within a period of ninety (90) days from the date of receipt of certified copy of this Order. The parties are directed to appear before the Member, National Industrial Relations Commission/Respondent No.2 on 20-6-2022 along with a certified copy of this Order.