' AJMAL MIAN, J.-The petitioners through this petition have prayed for the following reliefs :-
(a) "Declare that the proceedings in case No, 4 ( ? )/82/NIRC. Usman Kandawala v. Ghiasuddin pending before respondent No, 1 and the impugned orders. Dated 4th July, 1982 and 10th July, 1982 are without lawful authority and of no legal effect.
(b) Costs.
(c) Such other relief as this Honourable Court may deem fit".
2. The brief facts leading to the filing of the above petition are that respondents Nos, 2 to 5 were employed with petitioner No, 1 bank. It seems that on 17th May, 1982 a report was lodged with the F. I.
A. Against one Haroon Latif the Manager of petitioner No, 1 bank's Saleh Muhammad Branch, Karachi, in respect of some alleged fraud. It is the case of the petitioners that on account of the above complaint, the F. I. A. Had taken action, which had annoyed respondents Nos, 2 to 5.
Consequently they allegedly organized an illegal strike on 22nd May, 1982 paralyzing petitioner No, 1 bank's 18 branches in Karachi. It is also the case of petitioner No, 1 bank that respondents Nos, 2 to 5 were charge-sheeted for the above alleged misconduct and an enquiry was held against them. As a result of which, above respondents Nos, 2 to 5 were dismissed from services on 1st July, 1982. The dismissal orders were conveyed to them through telegrams and also through press namely, daily Urdu newspaper, Mashriq and English daily newspaper Morning News both dated 2nd July, 1982. It is further case of petitioner No, 1 bank that on 3rd July, 1982 petitioner No, 1 bank filed an application with the National Industrial Relations Commission (hereinafter referred to as the Commission (Case No, 4(115)/82) with the copies of dismissal orders, postal receipts and the copies of telegrams and newspapers containing publication of dismissal orders. It is also the case of petitioner No, 1 bank that on 4th July, 1982 respondents Nos, 2 to 5 filed a complaint under section 53 read with section 15 of the I. R.
0. Against petitioners Nos, 2 to 4 for the alleged unfair labour practice before the Commission.
Alongwith the above application, they also filed an application under Regulation No, 32 for the suspension of the above, termination orders. Whereupon, the Chairman of the Commissions respondent No, 1 passed an order on 4th July, i982 suspending the above dismissal orders.
Thereupon, above respondents Nos, 2 to 5 on 4th July, 1982 applied to petitioner No, 1 bank for allowing them to attend the office on the strength of the above order. In response to which, they were allowed to attend the office on 5th July, 1982 but they also marked their presence on the muster roll for 3rd and 4th July, illegally, which fact was allegedly pointed out to them. The above ad interim suspension order was confirmed by respondent No, 1 on 10th July, 1982. The petitioners being aggrieved by the above order have filed the present petition on 14th July, 1982.
' The petition was admitted for regular hearing on 15th July, 1982 and the above suspension order of respondent No, 1 was stayed, which is still holding the ground.
' The case of the respondents Nos, 2 to 5 is that there was no illegal strike at their behest and that the enquiry was hurriedly and illegally conducted and that factually the dismissal orders were not implemented and therefore, respondent No, 1 was competent to suspend the above order.
(2)(a) In support of the above petition Mr. Saeed A. Shaikh, learned counsel for the petitioners has urged as follows :-
(1) That since as per averments contained in respondents Nos, 2 to 5's complaint under section 53 read with section 15 of the I. R. O., they were officers and not workers or workmen in terms of section 2(xxviii) of the I. R.
0., the above complaint was not competent.
(ii) That the complaint does not disclose any unfair labour practice.
(iii) That as respondents Nos, 2 to 5 having not made the bank a party to the above complaint, no interim order could have been passed against it.
(iv) That even otherwise, respondent No, 1 had no power to pass an interlocutory order suspending a dismissal order in an application under section 53 read with section 15 of the I. R.
0.
(b) On the other hand Mr. Obaidur Rehman, learned counsel for respondents Nos, 2 to 5 has contended as follows :-
(i) That petitioners Nos, 2 to 4 have not raised any plea before respondent No, I that respondents Nos, 2 to 5 are not workers or workmen in terms of section 2(xxviii) of the I. R.
0. And therefore, they cannot be allowed to raise the same before this Court.
(ii) That the question, whether a case of an unfair labour practice has been made out is a question of fact within the jurisdiction of respondent No, 1, and, therefore, this Court will not pre-empt the decision of respondent No, 1 on the above fact.
(iii) That respondents Nos, 2 to 5's complaint was competent against petitioners Nos, 2 to 4, as they are the officers concerned of petitioner No, 1 bank.
(iv) That since the dismissal orders were not implemented, but the implementation was threatened, respondent No, 1 was entitled to prohibit the same by virtue of Regulation No, 32 read with section 21-A (8)(g) of the I. R.
0.
3. It may be observed that we have gone through the preliminary objections filed by petitioners Nos, 2 to 4 to respondents Nos, 2 to 5's above complaint before respondent No, 1 and have noticed that they have not raised any plea to the effect that the above respondents Nos, 2 to 5 are not workers or workmen within the ambit of section 2(xxviii) of the I. R.
0. In this view of the matter, we are not inclined to entertain the learned counsel for the petitioner's above plea. Furthermore, the question, whether an employee falls within the definition of worker or workman in a question of fact, which cannot be decided without having evidence on record inter alia on the nature of the duties. Additionally the above question of fact is within the competency of respondent No, 1.
We are also inclined to hold that the question, whether respondents Nos, 2 to S's complaint discloses a case of an unfair labour practice is also within the jurisdiction of respondent No, 1 and this Court at this stage cannot exercise writ jurisdiction and cannot pre-empt respondent No, l's decision.
As regards the above 3rd contention of Mr. Saeed A. Shaikh, learned counsel for the petitioners, it will suffice to regards the above 3rd contention of Mr. Saeed A. Shaikh, learned counsel for the petitioners, it will such to observe that a complain under section 53 read with section 15 of the I. R.
0. Is competent even against an officer of an employer. Additionally respondents Nos, 2 to 51 are said to be the officers concerned of petitioner No, 1 bank.
4. Adverting to the last contention of Mr. Said A. Shaikh, and counter-submission of Mr. Ubaidur Rehman, it may be advantageous to reproduce herein below section 22-A (8)(g) of the I. R.
0. And Regulation 32 of the (Procedure and Functions) Rules, 1973 (hereinafter referred to as the Regulations), which read as follows :- Sec. 22-A. "(1) ...
(8)(g).
(2) ...
(3)
(4)
(5)
(6) ...
(8) The following shall be the functions of the Commission, namely :-
(a) ... ... .. . 0
(d) ... 0.0
(e) ... ...
If)
(g) to deal with cases of unfair labour practices specified in sections 15 and 16 on the part of employers, workmen, trade Unions of either of them or persons acting on behalf of any of them, whether committed individually or collectively, in the manner laid down under section 25-A or section 34 or in such other way as may be prescribed, and, to take, in such manner as may be prescribed by regulations under section 22-F, measures calculated to prevent an employer or workman from committing an unfair labour practice."
Regl. 32--Manner of dealing with unfair labour practice-(1) Where an unfair labour practice has been committed, and the case falls under section 25-A, section 34 or section 53, as the case may be, the Commission may deal with the case under that section : ' Provided that the Commission while awarding punishment under section 53, may also direct the re-instatement of a worker and allow consequential benefits to him.
(2) Where case of unfair labour practice is likely to occur, the Commission may take the following measures, namely :-
(a) it may summon all or any of the persons connected with the case which is likely to occur, hereafter in this chapter referred to as the connected persons, hear them and hold such enquiry as it deems fit.
(b) ascertain the factors which are likely to give rise to unfair labour practice.
(c) advise, direct or prohibit all or any of the connected persons to do or refrain from doing any act or to conduct themselves or their affairs in a manner calculated to avoid occurrence of unfair labour practice.
(d) reprimand or warn all or any of the connected persons that if they conduct themselves in an improper way it would be deemed to be in furtherance of the commission of an offence punishable under section 53 ; and
(e) initiate security proceedings in order to prevent the occurrence of an unfair labour practice."
It may be noticed that the above-quoted clause (g) of subsection (8); of section 22-A empowers the Commission to deal with the cases of unfair labour practice specified in sections 15 and 16 of the I. R.
0. On the part of employers, workmen, trade Unions or either of them or persons acting on behalf of them whether committed individually or collectively, in the manner laid down under section 25-A or section 34 or in such other way as may be prescribed and prescribed and to take in such manner as may be prescribed by regulations under section 22-F measures calculated to prevent an employer or workman from committing an unfair labour practice. It may further be noticed that the above Regulation 32 has two parts, namely, clause 1, which deals with an unfair labour practice already committed, whereas clause 2 provides for an unfair labour practice which is likely to be committed and in this behalf the Commission is empowered inter alia to prohibit all or any of the connected persons to do or refrain from doing any act or to conduct themselves or their affairs in a manner calculated to avoid occurrence of an unfair labour practice. In other words, the Commission has been empowered under clause 2 of Regulation 32 to prohibit the Commission of an act/ commission which constitutes an unfair labour practice. But the Commission has not been vested with such power in respect of an unfair labour practice already committed covered by above clause I.
5. Mr. Said A. Shaikh has taken us through respondents Nos, 2 to 5's above complaint under section 15(1)(b) and (c) of the I. R.
0. Read with section 151, C. P. C. In order to demonstrate that in the complaint they have complained of an unfair labour practice allegedly already committed and not of a threatened unfair labour practice. It may be pertinent to quote hereinbelow para. 1 and the prayer clause of the complaint, which read as follows "9. That the respondents/accused persons jointly and severally have committed acts of unfair labour practice as defined under section 15(1)(b) and (c) of I. R.
0., 1969.
PRAYER ' It is therefore prayed
(a) That the accused persons be brought in Court and may be dealt with in accordance with law.
(b) That the accused persons, their other officers, collagues, agents, servants or anybody on behalf of the bank be prohibited from terminating the services of the complainants till decision of this complaint and/or operation of mala fide and arbitrary orders of termination of services of complainants be stayed.
(c) That the accrued persons be prohibited from further indulging in unfair labour practice. Prayed accordingly."
' It may be noticed that in the above-quoted para. 9 the above respondents Nos, 2 to 5 have alleged that the petitioners Nos, 2 to 4 have jointly and severally committed acts of unfair labour practice in terms of section 15 (1)(b) and (c) of the I.R.O. In the prayer inter alia it has been prayed that the accused persons be brought to Court and may be dealt with in accordance with law and that the accused persons their officers, colleagues, agents, servants or anybody on behalf of the bank be prohibited from terminating the services of the complainants till decision of the complaint and/or operation mala fide and arbitrary orders of termination of services of the complainants be stayed.
' From the contents of the above-quoted paras. Particularly of para. 9, it is evident that respondents ' Nos, 2 to 5 had alleged an unfair labour practice which had allegedly already been committed by petitioners Nos, 2 to 4.
6. Mr. Said A. Shaikh has referred to the following cases :
(i) Dr. Aijaz Hussain Qureshi v. National Industrial Relations Commission and 2 others , in which an interlocutory order of the Commission suspending order of dismissal during the pendency of the complaint filed before the Commission under section 53 of the 1.R.O. For the alleged unfair labour practice was impugned. Shafiur Rahman, J (as he then was) held that the Commission had no power to suspend a dismissal order in a complaint filed under section 53 of the I.R.O. For an alleged unfair labour practice. It may be advantageous to reproduce hereinbelow the relevant observations, which read as follows : "11.-The Regulations do have a statutory basis and force and they do expressly provide and empower the Commission to direct the reinstatement of the employees. But such a direction has been made dependent on the Commission's finding the person standing trial guilty under section 53 of the Ordinance. Such a power of directing reinstatement is not ancillary or incidental to the process of adjudication but is consequential to a finding of guilty. It is only when the Commission has arrived at the guilt of the employer that a further direction is required to be exercised in the matter of directing the reinstatement of the employees. In other words, the precondition of the finding of guilt has to be statisfied before the power to direct re-in statement either finally or as an interim measure, can be ordered. As the scheme of the Act itself contains no provision for determining ad interim the guilt of a person' charged of the offence, the consequential relief dependent on final adjudication cannot be availed of to provide interim relief. Keeping in view the scheme of the Ordinance and the Regulation the power to direct reinstatement does not appear to be either incidental or ancillary. Instead, it appears to be consequential and therefore, it cannot be exercised ad interim only because the jurisdiction to try an offender has been conferred on the Commission.
12.-The learned counsel appearing for the Commission have contended that the Commission has ample powers under section 22-E read with Regulation 32 to prevent the occurrence or the recurrence of unfair labour practice. It is true that the Commission have vast powers under the law to prevent the occurrence or recurrence of unfair labour practice and as clause (g) of subsection
(8) of section 22-A itself shows "it has been empowered to take in such manner as may be prescribed measures calculated to prevent an employer or workmen from committing an unfair labour practice". Clause (2) of Regulation 32 provides in detail the preventive measures which can be taken. On the strength of such powers it is contended that the Commission could direct the reinstatement of the workers while seized of their complaint under section 53 of the Ordinance because it was a sort of continuing wrong.
13.-The preventive powers are always distinguishable from punitive powers and ordinarily no such difficulty is experienced. In the case before me the Commission itself while passing the interim order took it to be a case of dismissal by the employer of the complainants without observing the formalities of the law. On this view of the matter, it was to be wholly an ex post facto inquiry in to the manner of dismissal and nothing more. If the dismissal was held to be not in accordance with law and such as may be punishable under section 53 of the Ordinance or amounting to unfair labour practice, the necessary penal provisions had to be applied. It was not at all a case of either a continuing wrong or of the exercise of powers to prevent the occurrence or recurrence of the unfair labour practice.1
(ii) An unreported order, dated 1st October, 1980 in the case of Sind Alkalies Ltd. And others v. Senior Member N I R C and another C P No, 1358 of 1980 passed by a Division Bench of this Court, to which one of us was a party (Ajmal Mian, J) in which inter alia the following observations as to the scope of the above provisions of the I.R.O. And Regulation 32 were made : "(c) It may be noticed that the abovequoted Regulation 32 divides unfair labour practice into two categories i,e, an unfair labour practice, which has already been committed and an unfair labour practice, which is like to occur. Under para. 1 of the above Regulation, it has been provided that where an unfair labour practice has been committed, the Commission may deal with the case under section 25-A, section 34 or section 53 according to the nature of the case. Whereas in case of an unfair labour practice, which is likely to occur the Commission has been given the power to summon all or any of the persons connected with the case, which is likely to occur, and hear them and hold such enquiry as it deems fit and to ascertain the facts, which are likely to give rise to unfair labour practice and to advise, direct or prohibit all or any of the connected persons to do or refrain from doing any act or to conduct themselves or their affairs in a manner calculated to avoid occurrence of unfair labour practice. It also gives the power to reprimand or to warn such persons or to initiate security proceedings with the view to prevent the occurrence of unfair labour practice etc.
(d) Whereas the above quoted section 22-A (8)(g) empowers the Commission to deal with cases of unfair labour practice specified in sections 15 and 16 on the part of employers, workmen, trade unions of either of them or persons acting on behalf of any of them whether committed individually or collectively in the manner provided under section 25A or section 34 or in such other way as may be prescribed, and to take in such manner as may be prescribed by Regulations under section 22- F, measures calculated to prevent an employer or workmen, from committing an unfair labour practice. It may be observed that the above sub-clause (g) of section 22-A (8) contemplates taking of measures calculated to prevent an employer or workmen from committing an unfair labour practice in the manner which may be prescribed by the Regulations. In other words the action is to be taken in consonance with the Regulations.
(3) In the instant case the respondent No, 2 filed a complaint under section 15 read with section 53 of the I.R.O. It may be observed that a complaint under section 53 could have been filed in respect of an unfair labour practice already committed as provided under aforesaid para. 1 of the Regulation 32 referred to hereinabove and not in respect of an unfair labour practice, which is likely to occur. It may be noticed that proceedings under section 53 are of criminal nature and they entail imprisonment upto 3 years' R.I. Or with fine upto Rs, 2,000 or both. The respondent No, 2's above complaint is mainly based on the aforesaid transfer order, which according to him, was prompted mala fidely with the view to victimize him as he is an active unionist. In our view the very fact that the respondent No, 2 has chosen to file the above complaint under section 53 prima facie indicates that he himself has treated the above order of transfer, an act of unfair labour practice, which has already been committed, and, therefore, prima facie the respondent No, 2's case falls within the ambit of para. 1 of Regulation 32 and not under para. 2 of the above Regulation and, hence, prima facie the ad interim order of the nature in issue, could not have been passed by the learned Member of the N.I.R.C."
(iii) Unreported judgment, dated 14th October, 1983 in the case of Saeed Ahmed Kazi and another v.
Chairman, N.I.R.C. And another, dated 14th October, 1983 (C.P. No, D-74 of 1983) by a Division Bench of this Court, in which reliance was placed on the above unreported order passed in C.P. No, 1358 of 1980. It was held that the order of the Commission staying the transfer order upon a miscellaneous application in a pending complaint under section 53 of the I.R.O. Was without lawful authority. It may be pertinent to quote hereinbelow the relevant observations, which read as follows : "In any case the respondent No, 2 cannot take up two inconsistent positions. One where he says that penal action under section 53m should be taken against the petitioners because they have already committed an unfair labour practice under section 15 of I.R.O. By transferring him on account of his union activities and the other position that the petitioners are likely to commit or are intending to commit an unfair labour practice by transferring him from Hyderabad to Sukkur. The respondent No, 2 cannot blow hot and could in the same breath. He has to confine himself to one position and if he takes two inconsistent positions then he himself takes risk of the same.
' Mr. Mamoon Kazi also cited PLD 1976 Lah. 611 where it was held that while dealing with a complaint under section 53 the Commission would not make an order of reinstatement of a dismissed employee before concluding the hearing of the complaint under section 53. This view was based on the proviso of Regulation 32 (1) which provided that while awarding punishment under section 53 the Commission may also direct the reinstatement of worker and allow consequential benefit to him. With respect we agree with this view.
' In the result we are of the view that the order, dated 24th October, 1982 and 22nd December, 1982 passed by respondent No, 1 restraining the transfer of the respondent No, 2 on a complaint under section 53 of the I.R.O. ....Re made without jurisdiction and are hereby declared to be without lawful authority. The complaint of the respondent No, 2 under section 53 can however, be proceeded with by respondent No,
1. This petition is allowed and the order of stay of transfer of respondent No, 2 by the respondent No, 1, dated 22nd December, 1982 is declared to be without lawful authority."
(iv) Reference may also be made to the case of Hotel Inter-Continental, Rawalpindi v. National Industrial Relations Commission, Islamabad and 6 others in which a learned Single Judge of the Lahore High Court followed the above reported judgment of Shafiur Rahman, J. (PLD 1976 Lah. 611).
7. On the other hand Mr. Obaidur Rehman, learned counsel for the respondents Nos, 2 to 5 has referred to the following cases :
(i) The Commissioner, Khairpur Division, Khairpur and another v. Ali Sher , in which it was held that the Tribunal hearing an appeal against an order passed under the West Pakistan Control of Goondas Ordinance (35) 1959 had the power to suspend the order passed under the above Ordinance during the pendency of the appeal.
(ii) Lever Brothers Pakistan Ltd. v. Muhammad Suleman and others in which a learned Single Judge of the Lahore High Court has inter alia pointed out the distinction between clause (1) and clause (2) of Regulation 32 read with section 22-A (8)(g) of the I.R.O. And held that under the latter provisions the Commission could grant an ancillary relief during the pendency of a complaint. The relevant observation reads as follows : "I would not like to give any opinion on these submissions, but to ' me it occurs that should the Commission, on the basis of affidavits, pleadings and other material before it, find prima facie that these factors are reasonably likely to give rise to some unfair labour practice, within the meaning of clause (b) of sub-regulation (2) of Regulation 32, then I do not see any reason why it should not have the authority to grant interim relief, as stated in or akin to clauses (c) to (e) of the same sub- regulation. In this connection, the decision of the Supreme Court in the case of the Sind Employees'
Social Security Institution is clear. Such an interm order can be passed even if the law does not so provide, provided it is incidental or ancillary to the proceedings and the circumstances of the case imminently justify it. In a case under sub-regulation (2) of Regulation 32, it will be incidental or ancillary, if it enables the Commission to exercise its jurisdiction conferred under the said provision more effectively and in accordance with the requirements of justice and reason. It will not be so, if it is otherwise. Under the "ancillary jurisdiction doctrine", a Court or Tribunal has jurisdiction over a case or controversy in its entirety and has, as incident to the proper disposal of the matter before it, full jurisdiction to decide other matters raised in the case. The term "ancillary" denotes any claim or relied that may collaterally arise out of or be dependent upon or otherwise auxiliary to a claim2 3 4 asserted. A matter which is "incidental" is something which appertains to or depends upon something else which is the main purpose. In appropriate cases an interim relief would be incidental or ancillary for the proper exercise of jurisdiction conferred on a Court or Tribunal under a relevant provision of law, for more effectively doing justice in the case. It is clear that Regulation 32(2) is intended to prevent the apprehended commission of any unfair labour practice. If the Commission cannot pass an interim order to prevent an immediately threatened transgression, even though reasonable material for the same is before it, on the ground that it must first comply with clauses (a) to (b) of sub-regulation (2) of Regulation 32, the very purpose of the Regulation would be lost and the unfair labour practice committed."
8. The above-cited case of the Supreme Court of Pakistan relied upon by Mr. Obaidur Rehman is not directly on the point in controversy. But the Lahore case of 1984 has some bearing to the instant case. However, even in the above case, it has not been held that in a complaint under section 53, I.R.O. For an unfair labour practice already committed an interlocutory order of the nature in issue can be passed by the Commission. It has been held to the above case that a threatened unfair labour practice can be prohibited or prevented. It may be pointed out that in the aforesaid unreported order passed in C. P. No, 1358/80, a Division Bench of this Court has pointed out the above distinction between clauses 1 and 2 of Regulation 32 read with section 22-A (8)(g) of the I.R.O.
9. We have already pointed out hereinabove that in the instant case respondents Nos, 2 to 5 have auerred in their complaint that petitioners Nos, 2 to 4 were guilty of an unfair labour practice already committed and, therefore, the impugned order was not warranted either under clause (2) of Regulation 32 or section 22-A (8) (g) of the I.R.O. As I amounted to ordering of reinstatement through an interlocutory order which relief could have been granted by the Commission under Regulation 32 after recording conviction for an unfair labour practice after trial of the complaint. It may be observed that if the Commission records an acquittal order in a complaint under section 53 of the I.R.O. Relief of reinstatement, cannot be granted under Regulation 32. In other words, grant of relief of reinstatement is dependent on recording of conviction. We may also observe that respondents Nos, 2 to 5 could not have pressed into service section 53 of the I.R.O. Without alleging the commission of an unfair labour practice. We, therefore, allow the petition with no order as to costs and declare the impugned order as without lawful authority and of no legal effect.
PLD 1976 Lab. 611 1980 PLC 752 PLD 1971 SC 242 1984 PLC 115