M IANGUL HASSAN AURANGZEB, J:- Through this judgment, I propose to decide writ petitions No.1984/2022, 2029/2022, 2030/2022, 2031/2022, 2032/2022, 2033/2022, 2600/2022, 2601/2022, 2602/2022, 2603/2022, 2604/2022, 4069/2022, 31/2023, 886/2023, 887/2023 and 888/2023 since they entail common legal questions.
WRIT PETITION NO.1984/2022 (PAKISTAN TELECOM MOBILE LIMITED VS. THE LEARNED SINGLE BENCH, NIRC AND OTHERS)
2. The record shows that respondents No.2 to 21 were employed against different posts in Pakistan Telecom Mobile Limited ("PTML") (Ufone). At different points in the year 2018, their services were terminated. They accordingly served their grievance notice(s) and following the rejection thereof, filed grievance petitions before the National Industrial Relations Commission ("NIRC").
3. The grievance petitions were allowed by way of a common judgment dated 21.12.2020 by the Member, NIRC. Against the said order, PTML preferred appeals before the Full Bench, NIRC which were dismissed vide order dated 12.04.2022.
4. Meanwhile, respondents No.2 to 21 filed a complaint under Sections 33(6), 57(a), 68, 69, 70, 75 and 77 of the Industrial Relations Act 2012 ("IRA, 2012") for the commencement of contempt proceedings against PTML's senior management. In the ensuing proceedings, the Member, NIRC, vide order dated 25.05.2022 directed that non-bailable warrants of arrest be issued against Mr. Ahmad Kamal, Vice President, at the PTML's establishment in Blue Area Islamabad. The said order has been impugned by way of writ petition No.1984/2022.
WRIT PETITION NO.2029/2022 (PAKISTAN TELECOM MOBILE LIMITED VS. JAVERIA RIAZ AND OTHERS)
5. The record shows that on 15.04.2006, Javeria Riaz/respondent No.1 was appointed as Executive Customer Care in PTML (Ufone) on contract basis. In 2013, respondent No.1 and eleven other similarly placed persons approached the NIRC for the regularization of their services. On 02.07.2013, the NIRC affirmed the stay order in favour of the workmen. During the pendency of the proceedings, respondent No.1 was served with a notice of termination of services dated 08.11.2018.
6. Following the notice of termination, respondent No.1 served her grievance notice dated 27.11.2018 which was regretted by PTML. Respondent No.1 accordingly filed a grievance petition before the NIRC which was allowed by the Member, NIRC vide order dated 21.12.2020. Against the said order, PTML preferred an appeal before the Full Bench, NIRC which was dismissed vide order dated 12.04.2022.
7. Meanwhile, in April 2021, respondent No.1 filed a complaint under Sections 33(6), 57(a), 68, 69, 70, 75 and 77 of the IRA, 2012 for the commencement of contempt proceedings against PTML's senior management. In the ensuing proceedings, the Member, NIRC, vide order dated 25.05.2022, directed that non-bailable warrants of arrest be issued against Mr. Ahmad Kamal, Vice President, at PTML's establishment in Blue Area Islamabad.
WRIT PETITION NO.2030/2022 (PAKISTAN TELECOM MOBILE LIMITED VS. SAJID MEHMOOD AND OTHERS)
8. The record shows that on 28.09.2007, respondent No.1 was appointed as Executive Customer Care in PTML (Ufone) on contract basis. In 2013, respondent No.1 and eleven other similarly placed persons approached the NIRC for the regularization of their services. On 02.07.2013, the NIRC affirmed the stay order in favour of the workmen. During the pendency of the proceedings, respondent No.1 was served with a notice of termination of services dated 08.11.2018.
9. Following the notice of termination, respondent No.1 served his grievance notice dated 27.11.2018 which was regretted by PTML. Respondent No.1 accordingly filed a grievance petition before the NIRC which was allowed by the Member, NIRC vide order dated 21.12.2020. Against the said order, PTML preferred an appeal before the Full Bench NIRC which was dismissed vide order dated 12.04.2022.
10. Meanwhile, in April 2021, respondent No.1 filed a complaint under Sections 33(6), 57(a), 68, 69, 70, 75 and 77 of the IRA, 2012 for the commencement of contempt proceedings against PTML's senior management. In the ensuing proceedings, the Member, NIRC, vide order dated 25.05.2022 directed that non-bailable warrants of arrest be issued against Mr. Ahmad Kamal, Vice President, at PTML's establishment in Blue Area Islamabad.
WRIT PETITION NO.2031/2022 (PAKISTAN TELECOM MOBILE LIMITED VS. NAZISH ZAHID AND OTHERS)
11. The record shows that on 29.05.2006, Nazish Zahid / respondent No.1 was appointed as Executive Customer Care in PTML (Ufone) on contract basis. In 2013, respondent No.1 and eleven other similarly placed persons approached the NIRC for the regularization of their services. On 02.07.2013, the NIRC affirmed the stay order in favour of the workmen. During the pendency of the roceedings, respondent No.1 was served with a notice of termination of services dated 08.11.2018.
12. Following the notice of termination, respondent No.1 served her grievance notice dated 27.11.2018 which was regretted by PTML. Respondent No.1 accordingly filed a grievance petition before the NIRC which was allowed by the Member, NIRC vide order dated 21.12.2020. Against the said order, PTML preferred an appeal before the Full Bench, NIRC which was dismissed vide order dated 12.04.2022.
13. Meanwhile, in April 2021, respondent No.1 filed a complaint under Sections 33(6), 57(a), 68, 69, 70, 75 and 77 of the IRA, 2012 for the commencement of contempt proceedings against PTML's senior management. In the ensuing proceedings, the Member NIRC, vide order dated 25.05.2022 directed that non-bailable warrants of arrest be issued against Mr. Ahmad Kamal, Vice President, at PTML's establishment in Blue Area Islamabad.
WRIT PETITION NO.2032/2022 (PAKISTAN TELECOM MOBILE LIMITED VS. SYED HAIDER RAZA AND OTHERS)
14. The record shows that on 29.08.2006, Syed Haider Raza Naqvi / respondent No.1 was appointed as Customer Facilitation Agent in PTML (Ufone) on contract basis. In 2013, respondent No.1 and eleven other similarly placed persons approached the NIRC for the regularization of their services.
On 02.07.2013, the NIRC affirmed the stay order in favour of the workmen. During the pendency of the proceedings, respondent No.1 was served with a notice of termination of services dated 08.11.2018.
15. Following the notice of termination, respondent No.1 served his grievance notice dated 27.11.2018 which was regretted by PTML. Respondent No.1 accordingly filed a grievance petition before the NIRC which was allowed by the learned Member, NIRC vide order dated 21.12.2020. Against the said order, PTML preferred an appeal before the Full Bench, NIRC which was dismissed vide order dated 12.04.2022.
16. Meanwhile, in April 2021, respondent No.1 filed a complaint under Sections 33(6), 57(a), 68, 69, 70, 75 and 77 of the IRA, 2012 for the commencement of contempt proceedings against PTML's senior management. In the ensuing proceedings, the Member NIRC, vide order dated 25.05.2022 directed that non-bailable warrants of arrest be issued against Mr. Ahmad Kamal, Vice President, at PTML's establishment in Blue Area Islamabad.
WRIT PETITION NO.2033/2022 (PAKISTAN TELECOM MOBILE LIMITED VS. NOSHEEN BUTT AND OTHERS)
17. The record shows that on 20.02.2006, Nosheen Butt / respondent No.1 was appointed as Executive Customer Care in PTML (Ufone) on contract basis. In 2013, respondent No.1 and eleven other similarly placed persons approached the NIRC for the regularization of their services. On 02.07.2013, the NIRC affirmed the stay order in favour of the workmen. During the pendency of the proceedings, services of respondent No.1 were terminated vide order dated 08.11.2018.A.
18. Pursuant to her termination, respondent No.1 served her grievance notice dated 27.11.2018 which was regretted by PTML. Respondent No.1 accordingly filed a grievance petition before the NIRC which was allowed by the Member, NIRC vide order dated 21.12.2020. Against the said order, PTML preferred an appeal before the Full Bench NIRC which was dismissed vide order dated 12.04.2022.
19. Meanwhile, in April 2021, respondent No.1 filed a complaint under Sections 33(6), 57(a), 68, 69, 70, 75 and 77 of the IRA, 2012 for the commencement of contempt proceedings against PTML's senior management. In the ensuing proceedings, the Member, NIRC, vide order dated 25.05.2022 directed that non-bailable warrants of arrest be issued against Mr. Ahmad Kamal, Vice President, at PTML's establishment in Blue Area Islamabad.
WRIT PETITION NO.2600/2022 (PAKISTAN TELECOM MOBILE LIMITED VS. LEARNED SINGLE BENCH NIRC AND ANOTHER)
20. The record shows that Pervez Iqbal / respondent No.2 was appointed as a Key Punching Operator in PTML (Ufone). In 2013, respondent No.2 filed a petition seeking the regularization of his services. During the pendency of the proceedings, services of respondent No. were terminated vide order dated 10.09.2018.
21. Respondent No. 2 accordingly filed a grievance petition before the NIRC which was allowed by the Member, NIRC vide order dated 28.12.2020. Against the said order, PTML preferred an appeal before the Full Bench NIRC which was dismissed vide order dated 12.04.2022.
22. Meanwhile, in 2021, respondent No.2 filed a complaint under Section 33(6) of the IRA, 2012 for the implementation of order dated 28.12.2020. In the ensuing proceedings, the Member, NIRC, vide order dated 25.05.2022 directed that non-bailable warrants of arrest be issued against Mr. Ahmad Kamal, Vice President, at PTML's establishment in Blue Area Islamabad. The said order has been impugned by way of Writ Petition No. 2600/2022.
WRIT PETITION NO.2601/2022 (PAKISTAN TELECOM MOBILE LIMITED VS. LEARNED SINGLE BENCH NIRC AND ANOTHER)
23. The record shows that Zafar Iqbal / respondent No.2 was appointed as a Key Punching Operator in PTML (Ufone). In 2013, respondent No.2 filed a petition seeking the regularization of his services.
During the pendency of the proceedings, services of respondent No.2 were terminated vide order dated 10.09.2018.
24. Respondent No.2 accordingly filed a grievance petition before the NIRC which was allowed by the Member, NIRC vide order dated 28.12.2020. Against the said order, PTML preferred an appeal before the Full Bench NIRC which was dismissed vide order dated 12.04.2022.
25. Meanwhile, in 2021, respondent No.2 filed a complaint under section 33(6) of the IRA, 2012 for the implementation of order dated 28.12.2020. In the ensuing proceedings, the Member NIRC, vide order dated 25.05.2022 directed that non-bailable warrants of arrest be issued against Mr. Ahmad Kamal, Vice President, at PTML's establishment in Blue Area Islamabad. The said order has been impugned by way of Writ Petition No. 2601/2022.
WRIT PETITION NO.2602/2022 (PAKISTAN TELECOM MOBILE LIMITED VS. LEARNED SINGLE BENCH NIRC AND ANOTHER)
26. The record shows that Asad Rafique/respondent No.2 was appointed as Executive Support Centre in PTML (Ufone). In 2013, respondent No.2 filed a petition seeking the regularization of his services. During the pendency of the proceedings, services of respondent No.2 were terminated vide order dated 10.09.2018.
27. Respondent No. 2 accordingly filed a grievance petition before the NIRC which was allowed by the Member, NIRC vide order dated 28.12.2020. Against the said order, PTML preferred an appeal before the Full Bench NIRC which was dismissed vide order dated 12.04.2022.
28. Meanwhile, in 2021, respondent No.2 filed a complaint under Section 33(6) of the IRA, 2012 for the implementation of order dated 28.12.2020. In the ensuing proceedings, the Member, NIRC, vide order dated 25.05.2022 directed that non-bailable warrants of arrest be issued against Mr. Ahmad Kamal, Vice President, at PTML's establishment in Blue Area Islamabad. The said order has been impugned by way of Writ Petition No.2602/2022.
WRIT PETITION NO.2603/2022 (PAKISTAN TELECOM MOBILE LIMITED VS. LEARNED SINGLE BENCH NIRC AND ANOTHER)
29. The record shows that Khawaja Adil Hussain / respondent No.2 was appointed as a Key Punching Operator in PTML (Ufone). In 2013, respondent No.2 filed a petition seeking the regularization of his services. During the pendency of the proceedings, services of respondent No.2 were terminated vide order dated 10.09.2018.
30. Respondent No.2 accordingly filed a grievance petition before the NIRC which was allowed by the Member, NIRC vide order dated 28.12.2020. Against the said order, PTML preferred an appeal before the Full Bench NIRC which was dismissed vide order dated 12.04.2022.
31. Meanwhile, in 2021, respondent No.2 filed a complaint under Section 33(6) of the IRA, 2012 for the implementation of order dated 28.12.2020. In the ensuing proceedings, the Member, NIRC, vide order dated 25.05.2022 directed that non-bailable warrants of arrest be issued against Mr. Ahmad Kamal, Vice President, at PTML's establishment in Blue Area Islamabad. The said order has been impugned by way of Writ Petition No. 2603/2022..%i WRIT PETITION NO.2604/2022 (PAKISTAN TELECOM MOBILE LIMITED VS. LEARNED SINGLE BENCH NIRC AND ANOTHER)
32. The record shows that Syed Mohsin Ali/respondent No.2 was appointed as an Executive Customer Care in PTML (Ufone). In 2013, respondent No.2 filed a petition seeking the regularization of his services. During the pendency of the proceedings, services of respondent No.2 were terminated vide order dated 10.09.2018.
33. Respondent No.2 accordingly filed a grievance petition before the NIRC which was allowed by the Member, NIRC vide order dated 28.12.2020. Against the said order, PTML preferred an appeal before the Full Bench NIRC which was dismissed vide order dated 12.04.2022.
34. Meanwhile, in 2021, respondent No.2 filed a complaint under Section 33(6) of the IRA, 2012 for the implementation of order dated 28.12.2020. In the ensuing proceedings, the Member, NIRC, vide order dated 25.05.2022 directed that non-bailable warrants of arrest be issued against Mr. Ahmad Kamal, Vice President, at PTML's establishment in Blue Area Islamabad. The said order has been impugned by way of Writ Petition No. 2604/2022.
WRIT PETITION NO.4069/2022 (PAKISTAN TELECOM MOBILE LIMITED VS. LEARNED MEMBER SINGLE BENCH NIRC AND ANOTHER)
35. The record shows that on 12.03.2012, respondent No.2 was appointed as Telephone Operator in PTML (Ufone). Respondent No.2's services were terminated on 01.11.2017 whereafter he filed a grievance petition before the NIRC seeking reinstatement in service with consequential back benefits. Vide order dated 29.05.2019, the Member, NIRC allowed the grievance petition and directed the reinstatement of respondent No.2 with back benefits. Against the said order, PTML preferred an appeal before the Full Bench, NIRC which was dismissed vide order dated 23.09.2019.
PTML assailed these orders before this Court in writ petition No.3345/2019 which was allowed vide judgment dated 11.06.2021 and the matter was remanded to the Full Bench, NIRC to decide the appeal afresh. Vide judgment dated 22.10.2021, the Full Bench, NIRC again dismissed the appeal.
PTML assailed the said order before this Court in Writ Petition 4481/2021 which was dismissed vide order dated 17.12.2021. PTML assailed the said order before the Hon'ble Supreme Court through CPLA 34/2022 which is still pending.
36. On 13.12.2021, respondent No.2 filed an application for implementation of order dated 29.05.2019 before the NIRC. In the ensuing proceedings, the Member, NIRC, vide order dated 12.10.2022, directed that bailable warrant of arrest be issued against PTML's senior management. The said order has been impugned by way of writ petition No.4069/2022.
WRIT PETITION NO.31/2023 (PAKISTAN TELECOMMUNICATION COMPANY LIMITED VS. ZULFIQAR ALI AND OTHERS)
37. The record shows that on 27.06.1988, Zulfiqar Ali Raza / respondent No.1 was appointed as a Telephone Operator at PTML's establishment. On 10.03.2008, he was relieved under the Voluntary Separation Scheme but was not given his pensionary benefits. Respondent No.1 filed a grievance petition under the Industrial Relations Act, 2008 ("IRA, 2008") before the Punjab Labour Court, Rawalpindi. The said grievance petition was allowed vide order dated 30.04.2010 and it was held that respondent No.1 was entitled to be paid pensionary benefits. Against the said order, Pakistan Telecommunication Company Ltd. ("PTCL") filed an appeal before the Full Bench NIRC which was dismissed vide order dated 20.10.2021. PTCL assailed these orders before this Court in Writ Petition No.3258/2022 which was dismissed vide judgment dated 17.10.2022.
38. On 19.07.2022, respondent No.1 filed a petition under Section 33(6) of the IRA, 2012 for the implementation of the order of the Labour Court dated 30.04.2010. In the ensuing proceedings, the Member, NIRC, vide order dated 07.12.2022, directed that bailable warrants of arrest be issued against senior management of PTCL's establishment. PTCL has filed the instant writ petition to question the jurisdiction of the NIRC to adjudicate upon respondent No.1's application for the implementation of the Labour Court's order dated 30.04.2010.
WRIT PETITION NO.886/2023 (PAK ARAB REFINERY LIMITED VS. WAHAB UD DIN AND OTHERS)
39. The record shows that respondents No.1 to 20 served in the establishment of Pak Arab Refinery Company Limited ("PARCO"). Pursuant to the rejection of their requests for regularization of service, respondents No.1 to 20 served grievance notices which were regretted. They filed a grievance petition before the Labour Court at Muzaffargarh but the same was transmitted to the NIRC.
40. On 17.11.2016, the Member, NIRC accepted the grievance petition and directed PARCO to regularize the services of respondents No. 1 to 20 from their dates of appointment within 30 days.
Against the said order, PARCO filed an appeal before the Full Bench NIRC which was dismissed.
PARCO further assailed these orders through a writ petition before the Hon'ble Lahore High Court, Multan Bench which was dismissed vide judgment dated 13.12.2022. PARCO assailed the said judgment before the Hon'ble Supreme Court through CPLA No.376/2023 which is pending.
41. Meanwhile, respondents No.1 to 20 filed a complaint under Sections 33(6) and 57 of the IRA, 2012 for summoning and punishment of PARCO's senior management for disobeying the order dated 17.11.2016. The same was treated as an application for implementation of the said order. In the ensuing proceedings, the Member, NIRC, vide order dated 08.03.2023, directed that bailable warrants of arrest be issued against senior management of PARCO. PARCO has filed writ petition No.886/2023 to question the jurisdiction of the NIRC to adjudicate upon respondent No.1 to 20's application for the implementation of the Labour Court's order dated 17.11.2016.
WRIT PETITION NO.887/2023 (PAK ARAB REFINERY LIMITED VS. MUHAMMAD ASHRAF AND OTHERS)
42. Respondents No. 1 to 10 served in PARCO's establishment as workmen. Pursuant to the rejection of their requests for regularization of service, respondents No.1 to 10 served grievance notices which were regretted. They filed a grievance petition before the Labour Court at Muzaffargarh but the same was transmitted to the NIRC.
43. On 17.11.2016, the Member, NIRC accepted the grievance petition and directed PARCO to regularize the services of respondents No.1 to 10 from their dates of appointment within 30 days.
Against the said order, PARCO filed an appeal before the Full Bench NIRC which was dismissed.
PARCO further assailed these orders through a writ petition before the Hon'ble Lahore High Court, Multan Bench which was dismissed vide judgment dated 13.12.2022. PARCO assailed the said judgment before the Hon'ble Supreme Court through CPLA No.386/2023 which is pending.
44. Meanwhile, respondents No.1 to 10 filed a complaint under Sections 33(6) and 57 of the IRA, 2012 for summoning and punishment of PARCO's senior management for disobeying the order dated 17.11.2016. The same was treated as an application for implementation of the said order. In the ensuing proceedings, the Member, NIRC, vide order dated 08.02.2023 directed that bailable warrants of arrest be issued against senior management of PARCO. PARCO has filed the instant writ petition to question the jurisdiction of the NIRC to adjudicate upon respondent No.1 to 10's application for the implementation of the Labour Court's order dated 17.11.2016.
WRIT PETITION NO.888/2023 (PAK ARAB REFINERY LIMITED VS. MUNAWAR MUMTAZ AND OTHERS)
45. The record shows that respondents No.1 to 4 served in PARCO's establishment as workmen.
Pursuant to the rejection of their requests for regularization of service, respondents No.1 to 4 served grievance notices which were regretted. They filed a grievance petition before the Labour Court at Muzaffargarh but the same was transmitted to the NIRC.
46. On 17.11.2016, the Member, NIRC accepted the grievance petition and directed PARCO to regularize the services of respondents No.1 to 4 from their dates of appointment within 30 days.
Against the said order, PARCO filed an appeal before the Full Bench NIRC which was dismissed.
PARCO further assailed these orders through a writ petition before the Hon'ble Lahore High Court, Multan Bench which was dismissed vide judgment dated 13.12.2022. PARCO assailed the said judgment before the Hon'ble Supreme Court through CPLA No.373/2023 which is pending.
47. Meanwhile, respondents No.1 to 4 filed a complaint under Sections 33(6) and 57 of the IRA, 2012 for summoning and punishment of PARCO's senior management for disobeying the order dated 17.11.2016. The same was treated as an application for implementation of the said order. In the ensuing proceedings, the Member, NIRC, vide order dated 08.03.2023 directed that bailable warrants of arrest be issued against senior management of PARCO. PARCO has filed writ petition No.888/2023 to question the jurisdiction of the NIRC to adjudicate upon respondent No.1 to 4's application for the implementation of the Labour Court's order dated 17.11.2016.
48. Learned counsel for the petitioners, after narrating the facts leading to the filing of the petitions, submitted that the NIRC does not have the power or jurisdiction to punish a party for contempt of Court; that unlike the Industrial Relations Ordinance, 2002 ("IRO, 2002") and the IRA, 2008, the IRA, 2012 has no provision which gives the NIRC powers as could be exercised by the Labour Court under Section 36 read with Section 22B of the Industrial Relations Ordinance, 1969 ("IRO, 1969") to punish a party for contempt of Court; that Section 33(7) of the IRA, 2012 provides inter alia that no person shall be prosecuted for not giving effect to an order passed by the NIRC except on a complaint in writing by a workman if the order in his favour is not implemented within the period specified therein; that the NIRC's orders sought to be enforced do not specify the period within which they were required to be implemented by the petitioners; that Section 78 of the IRA, 2012 provides that no Court other than a Labour Court or that of a Magistrate of the First Class shall try an offence punishable under the IRA, 2012; and that accordingly only a Court of a Magistrate could punish the petitioners for contempt of Court provided a complaint had been filed by the NIRC against them. Learned counsel for the petitioners prayed for a declaration to the effect that the proceedings conducted by the Member, NIRC pursuant to the private respondents' petitions seeking the initiation of proceedings for contempt of Court or for the implementation of the earlier orders passed by the NIRC in their favour are without lawful authority and of no legal effect.
49. On the other hand, learned counsel for the contesting private respondents submitted that since the petitioners have contumaciously violated the earlier orders passed by the Labour Court or the Member, NIRC, they are liable to be punished for such violation in accordance with the law; that although Section 78 of the IRA, 2012 provides that no Court other than a Labour Court or that of a Magistrate of the First Class, as the case may be, shall try an offence punishable under the said Act but the said provision does not override Section 33(6) or Section 57(1)(a) of the IRA, 2012; that Section 57(1)(a) of the IRA, 2012 empowers the NIRC to punish any person who disobeys any of its orders or directions with simple imprisonment which may extend to six months or with a fine which may extend to Rs.50,000/- or both; that similarly under Section 57(2)(a), the NIRC can, on the application of a party, or on its own motion, initiate prosecution, trial or proceedings, or take action, with regard to any matter relating to its functions; that even if the NIRC does not specify a date within which its order is to be implemented, by operation of Section 33(6) of the IRA, 2012, an order has to be complied with within seven days; that labour laws have to be construed in favour of the workmen; that the provisions of Code of Criminal Procedure, 1898 have been made applicable to proceedings in relation to trials of offences before the NIRC by virtue of Regulation 57 of the National Industrial Relations Commission (Procedure and Functions) Regulations, 2016 ("the 2016 Regulations"); that Regulation 48 of the said Regulations empowers the NIRC to issue warrants of arrest, whereas Regulation 50 empowers the NIRC to frame a charge against an accused; and that the petitioners have embroiled the private respondents in unnecessary litigation since several years. Learned counsel for the private respondents prayed for the writ petitions to be dismissed.
50. In rejoinder, learned counsel for the petitioners submitted that since the 2016 Regulations are not statutory in nature, they cannot be enforced by this Court in exercise of its Constitutional jurisdiction; that even otherwise, the said Regulations cannot confer a power on the NIRC which has not been conferred on it by the IRA, 2012; that there is no provision in the IRA, 2012 that constitutes the NIRC as a Labour Court or as a Court of a Magistrate; that since the NIRC has not been conferred with the powers of a Court or magisterial powers, it cannot punish a party for non- compliance with its orders; and that since no time had been fixed by the NIRC for the implementation of its orders, the proceedings on the private respondents' complaints were coram non-judice.
51. I have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance. The facts leading to the filing of the instant appeal have been set out in paragraphs 2 and 47 above and need not be recapitulated.
52. The primary question that needs to be answered is whether the NIRC could punish the petitioners or any of their officers for giving effect to or complying with its orders or those passed by the Labour Court. Section 33(6) of the IRA, 2012 empowers the NIRC to punish a person with imprisonment for a term which may extend for a period of one year or with a fine which may extend to Rs.75,000/- or both where such person defaults in giving effect to or complying with an order or a decision of the NIRC within seven days or within the period specified in such order or decision. Section 33(7) provides that no person shall be prosecuted under Section 33(6) except on a complaint in writing (a) by the workman if the order or decision in his favour is not implemented within the period specified therein; or (b) by the NIRC if an order or a decision thereof is not complied with.
53. Much emphasis was laid by the learned counsel for the petitioners on Section 33(7) of the IRA, 2012 which, according to them, does not permit the prosecution of a person under Section 33(6) if the order or decision of the NIRC does not specify a date within which such order or decision is to be implemented. He submitted that since the NIRC's orders in favour of the private respondents do not specify a date within which they were required to be implemented, no prosecution could have been initiated against the petitioners for non-compliance with such orders. I propose to first deal with this ground agitated on behalf of the petitioners.
54. Indeed the orders passed by the NIRC in favour of the private respondents do not fix a time frame within which the directions issued to the petitioners were required to be implemented. Since Section 33(6) makes a defaulter punishable with imprisonment for not giving effect to or complying with an order or a decision of the NIRC within seven days of such order or decision, it is my view that omission on the part of the NIRC to fix a time frame within which the said orders were to be implemented does not insulate the petitioners or their officers from prosecution under Section 33(6) if such order or decision is not implemented within seven days. It is only in cases where the NIRC specifies a period of more than seven days within which its order or decision is to be given effect to or complied with that prosecution against the defaulter under Section 33(6) cannot be initiated on the lapse of seven days of the order or a decision. In order to avoid prosecution under Section 33(6) for non-compliance with orders or decisions of the NIRC which do not specify a date by which they are required to be given effect to or complied with, such orders or decisions ought to be implemented within a period of seven days. Therefore, I do not find any substance in the contention made on behalf of the petitioners that prosecution under Section 33(6) could not have been initiated against the petitioners simply because the NIRC had not specified a time frame within which its orders were to be implemented.
55. Learned counsel for the petitioners are correct in their submission that unlike the IRO, 1969, there is no provision in the IRA, 2012 which gives the NIRC the powers of a Court of a Magistrate for the purpose of trying an offence under the said Act. Section 36(3) of the IRO, 1969 provided that a Labour Court shall, for the purpose of trying an offence under the IRO, 1969 or the West-Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 have the same powers as are vested in the Court of a Magistrate of the First Class especially empowered under Section 30 of the Code of Criminal Procedure, 1898. Section 36(1) of the IRO, 1969 required the Labour Court, while trying an offence, to follow as nearly as possible summary procedure as prescribed under the Code of Criminal Procedure, 1898, whereas under Section 36(2) of the IRO, 1969, a Labour Court was deemed to be a Civil Court for the purpose of adjudicating and determining an industrial dispute having the same powers as are vested in the Civil Court under the Code of Civil Procedure, 1908.
Section 45 of the IRO, 2002 and Section 53 of the IRA, 2008 corresponded with Section 36 of the IRO, 1969. Section 22B(3)(a) of the IRO, 1969 provided that the Benches of the NIRC shall, in relation to cases based on allegations of unfair labour practices brought before the NIRC for trial of offences, or enforcement of, or for redress of individual grievances in respect of any right guaranteed or secured to any employer or worker by or under any law or any award or settlement, perform such functions and exercise such powers as are performed and exercised by a Labour Court. There are indeed no provisions in the IRA, 2012 which correspond to Section 22B(3)(a) or Section 36 of the IRO, 1969.
56. However, Regulation 57 of the 2016 Regulations, which have been made by the NIRC with the prior approval of the Federal Government in exercise of the powers conferred by Section 66(1) of the IRA, 2012 makes the provisions of the Code of Criminal Procedure, 1898 applicable to the proceedings in relation to trial of offences before the NIRC, whereas Regulation 45 provides that the procedure prescribed under the Code of Civil Procedure, 1908 in regard to suits may be followed, as far as it can be made applicable, in the proceedings for adjudication and determination of industrial disputes, including adjudicating applications brought under Sections 33 and Section 54(e) of the IRA, 2012. The vires of these Regulations have not been challenged by the petitioners.
Even though Section 66(1) of the IRA, 2012 does not require the approval of the Federal Government to be given to Regulations made by the NIRC, these Regulations are to be applied and enforced by the NIRC as long as they remain in the field. Therefore, the NIRC, while proceeding with the petitioners' prosecution under Section 33(6) of the IRA, 2012, is to exercise powers and follow the procedure prescribed in the said Regulations.
57. Chapter- IX of the IRA, 2012, titled "Penalties and Procedures", containing Sections 67 to 79, provides for different penalties for contravention of various provisions of the said Act. For instance, Section 67(1) provides for the penalty of imprisonment which may extend to fifteen days or a fine which may extend to Rs.30,000/- or both for contravention of the provisions of Section 17 of the said Act, whereas Section 67(6) provides for the penalty of imprisonment which may extend to thirty days or a fine which may extend to Rs.75,000/- or both for contravention of the provisions of Section 47 of the said Act. Section 67(7) provides that nothing contained in IRA, 2012 shall be deemed to exclude the jurisdiction of the Labour Court of a Province or the Court of a Magistrate to try a case under the said Section if it is authorized to do so by general or special order of the NIRC.
Therefore, for any of the contraventions referred to in Section 67, a Labour Court of a Province or the Court of a Magistrate will have the jurisdiction to conduct a trial only if it is authorized to do so by general or special order of the NIRC.
58. Sections 68 to 75 also provide for penalties for different offences/contraventions under the IRA, 2012. As regards the trial of offences, Section 78 provides as follows:- "Save as provided in this Act, no Court other than a Labour Court or that of a Magistrate of the first class, as the case may be, shall try an offence punishable under this Act."
59. But for the words "save as provided in this Act" appearing in Section 78, all offences under the IRA, 2012 would have been made triable by a Labour Court or that of a Magistrate of the First Class.
However, it is only those offences which the provisions of the IRA, 2012 have specifically made triable by the NIRC that are to be tried by the NIRC and none other. If a mechanism was provided in the IRA, 2012 for trying offences punishable under the said Act by the NIRC, there would be no occasion for a Labour Court or a Court of a Magistrate of the First Class to assume jurisdiction in the matter. Section 54(d) of the IRA, 2012 makes it one of the functions of the NIRC to try offences punishable under (i) Section 67 other than subsections (1) and (6) thereof and (ii) any other Section, in so far as they relate to employers or workers in relation to a trade union or an industry- wise trade union in the Islamabad Capital Territory and trans-provincial, and a federation of such trade unions, or officers of such union or federation. Section 55(3)(c) also empowers the Benches of the NIRC to try offences under the IRA, 2012, but this provision when read with Section 54(d) would lead to the conclusion that the Benches of the NIRC can only try those offences which have been brought within the functions of the NIRC to try.
60. Section 57 of the IRA, 2012 confers certain additional powers on the NIRC. Under Section 57(1)(a), the NIRC has the power to punish any person who obstructs or abuses its process or disobeys any of its orders or directions, or does anything which tends to prejudice the case of a party before it, or tends to bring it or any of its members in relation to proceedings of the NIRC into hatred or contempt, or does anything which, by law, constitutes contempt of Court, with simple imprisonment which may extend to six months or a fine which may extend to Rs.50,000/- or with both. The powers of the NIRC under Section 57(1)(a) are akin to the powers to punish for contempt of Court. For the exercise of its powers under Section 57(1)(a), the NIRC need not refer or send the case to a Labour Court or a Court of a Magistrate. Power under the said Section has been conferred on the NIRC to exercise. It is perhaps for this very reason that Section 57(2)(a) empowers the Commission to initiate prosecution, trial or proceedings, or take any action, with regard to any matter relating to its functions.
61. Section 54(h) makes it one of the NIRC's functions to deal with cases of individual grievance in the manners prescribed in Section 33. The manner in which the NIRC is to deal with the case where its decision or order is not given effect to or complied with within seven days or within the period prescribed in such decision or order is specifically provided for in Section 33(6) and (7). Under Section 33(6), the defaulter is liable to be punished with imprisonment for a term which may extend to one year or with a fine which may extend to Rs.75,000/- or with both, whereas under Section 33(7), the defaulter is to be prosecuted only when a complaint is submitted by a workman against him. The conspectus of the provisions of the IRA, 2012 referred to herein above would cause me to hold that the NIRC is not denuded of the jurisdiction to prosecute and punish a person in terms of Section 33(6) in cases where such person does not give effect to or comply with a decision or order of the NIRC within seven days or within the period specified in such decision or order.
62. If an order passed under Section 33(5) is not given effect to or complied with within seven days or the time specified in the order, Section 33(6) makes the defaulter liable to punishment with imprisonment for a term which may extend to one year or with a fine which may extend to Rs.75,000/-, or with both. Although the learned Member, NIRC's orders do not prescribe a time limit within which the said orders were to be implemented, since they were admittedly not given effect to or complied with within seven days, the private respondents were well within their rights to have filed complaints against the petitioners under Section 33(6).
63. The statutory intendment behind Section 33(6) is to ensure that the decisions or orders of the NIRC are implemented and the individual grievances of workmen are redressed expeditiously. It is for this purpose that a party that defaults in implementing the decisions or orders of the NIRC is to be met with the severe penalty of imprisonment, or a fine or both. The power to incarcerate a judgment debtor or defaulter for not implementing an order of a Court or a Tribunal is not unknown. As one of the modes of execution of a decree, Section 51 of the Code of Civil Procedure, 1908 empowers the Court to execute a decree by arrest and detention in prison of a judgment debtor.
64. Non-compliance with directions issued by the NIRC in its decisions or orders would also amount to disobedience of such directions entailing the penalty prescribed in Section 57(1)(a) of the IRA, 2012. In the case of Pakistan Telecommunication Company Ltd. Vs. Member NIRC (2014 SCM R 535), the Hon'ble Supreme Court held in unequivocal terms that the powers of the NIRC include the power to punish for contempt of Court. In this regard, paragraph 10 of the said report is reproduced herein below:- "Under the provision of section 53, the NIRC has been constituted by the Federal Government but its functions and jurisdiction has been explained and elaborated in the provision of section 54 of the IRA, 2012. According to clause (e), the NIRC has the powers and jurisdiction to deal with the cases of unfair labour practices specified in sections 31 and 32 of the Act on the part of employers, workers, trade unions, either of them or persons acting on behalf of any of them, whether committed individually or collectively, in the manner laid down under section 33 or subsection (9) of section 33 or in such other way as may be prescribed, and to take, in such manner as may be prescribed by regulations under section 66, measures calculated to prevent an employer or workman from committing an unfair labour practice. In addition to above powers and jurisdiction, the NIRC has been conferred upon additional powers under the provision of section 57 of the Act (ibid), which includes the powers to punish for contempt of court and may award simple imprisonment which may extend to six months or with fine, which may extend to Rs.50,000 or with both."
65. If this Court were to accept the contention of the learned counsel for the petitioners that only a Labour Court or a Court of a Magistrate could conduct proceedings to punish a defaulter for not giving effect to or not complying with or violating a decision or order of the NIRC, it would not just amount to attributing complete redundancy to Section 33(6) and (7), Section 57(1)(a) and (2)(a) and Section 67(8) of the IRA, 2012, but would encourage such defaulters to flout decisions or orders of the NIRC with impunity and leave the downtrodden workmen to languish before different Courts in order to harvest the benefits of labour laws or to implement decisions or orders of the NIRC. For instance, in the cases at hand, the petitioners' reluctance to give the private respondents their dues in accordance with the orders of the NIRC has caused them to be embroiled in litigation for years.
66. In view of the above, all the petitions listed in the first paragraph herein-above are dismissed with costs throughout. The NIRC shall proceed with the pending applications expeditiously and decide the same preferably within a period of two months.