' This is an application under Order XXXIX, rules 1 and 2 read with section 151 for grant of interim injunction filed by Javed Akhtar Calligraphist and eleven others. The same petitioners also filed a petition under section 25-A read with section 22-A (8) (g) of the Industrial Relations Ordinance, 1969. It has been prayed in the application under Order XXXIX that the contents of the accompanying petition under section 25-A may be read as integral part of this application.
2. The facts alleged in the petition were that Javed Akhtar and eleven others were employed by the respondent establishment as Calligraphists. They were not issued letters of appointment in alleged violation of section 3 of the Newspaper Employees (Conditions of Service) Act, 1973 and West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. They performed duties of Calligraphists like the other Calligraphists, though they were employed against jobs of permanent nature but they were paid wages on temporary basis, thus depriving them of due wages, prescribed grades, weekly rests, festival holidays and statutory leave. They were also not paid overtime wages. The petitioners 1 to 4 were subsequently given wages @ Rs, 40 per day while the others continued to get Rs, 30 per day. The respondents allegedly locked-out the petitioners with mala fide intention on 9th March, 1982 and employed new Calligraphists as their substitutes, against law. Respondent No, 1 willfully charge-sheeted the petitioners on allegedly malicious and baseless charges. They were however, taken on duty in compliance with the prohibitory order issued by Member I. Since the respondents had initiated allegedlly mala fide actions, a group of workers willfully executed illegal and void agreement, dated 20th April, 1982 with the respondent according to the petitioners. On that basis, the respondents issued purported letter of appointments of the petitioners in which the petitioners were shown as Calligraphists appointed on daily wage basis. It was also stated in the letters of appointment that the offer was purely for correcting computer mistakes and as soon as the computer services improved, their services may- be terminated with fifteen days' notice without assigning any reason. It was stated in the petition that the petitioners were forced to put their signature under duress. None of the petitioners were originally employed for correcting the computer mistakes. Other Calligraphists employed in the respondent's establishment have been discharging the function of correcting the computer mistakes. New calligraphists were appointed on 10th March, 1982, as a consequence of illegal lock-out and were given letters of permanent appointment. All this was done because the petitioners had initiated the formation of Daily Jang Workers' Union in the establishment. Their names were appended in the list of members of that union submitted to the registrar and the respondents are opposed to the formation of that union. Because of this, the petitioner and his colleagues had been treated as temporary workers employed for a specific job and their terms and conditions had been changed. The petitioners served a grievance notice against the respondents, but the respondents refused to redress their grievance.
3. Petitioners, therefore, prayed in the main petition as follows :- "It is, therefore, respectfully prayed that the respondents may kindly be directed to (1) treat, consider and acknowledge the petitioners as permanent Calligraphists (2) allow weekly rests and festival holidays to the petitioners as required under law (3) make payment of arrears of illegal deductions made from the wages of the petitioners on account of weekly rests and festival holidays and (4) refrain from considering the petitioner in a different set of category for terminating their services under Standing Order XIII to the Schedule of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. Any other relief appropriate in the circumstances of the case may also be granted. Cost may also be awarded."
4. In the application under Order XXXIX, rules 1 and 2 the prayer was that "It is, therefore, respectfully prayed that the respondents may kindly be restrained from terminating, discharging, dismissing or retrenching the petitioners during the pendency of the accompanying petition."
5. Arguments of both the counsel have been heard at great length. This application has been made under rules 1 and 2 of Order XXXIX of C.P.C. Rule 1 has obviously no relevance, as it relates to matters of property and mere matters concerning employment are under consideration. Rule 2 of Order XXXIX is produced below :- 2.-(1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any breach of contract or relating to the same property or right.
(2) The Court may by order grant such injunction, on such terms, as to the duration of the injunction, keeping an account, giving security or otherwise, as the Court thinks fit.
6. Shorn of details it may be said for our present purpose that Rule 2 would be invoked in a suit for restraining the defendant from committing breach of contract or other injury. In such a suit the plaintiff may apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of or a breach of contract or injury of a like kind arising out of the same right. Thus, in order to invoke the provisions of this rule to secure a temporary injunction a suit for restraining the defendant from committing breach of contract or other injury should he pending adjudication before the Court or it should have given its judgment on it. In this case an application under section 25-A of the Industrial Relations Ordinance, 1969 is pending adjudication before this Commission. Now section 25-A of the I.R.O. 1969 provides that "a worker may bring his grievance in respect of any right guaranteed or secured to him by or under any law or award or settlement for the time being in force to the notice of his em-ployer " If the employer fails to give a decision or if the worker is dissatisfied with that decision he "may take the matter to the Labour Court... " In other words it is only a grievance' in respect of a right guaranteed or secured to a workman by law etc. Which could be taken to a Labour Court. Grievance, under section 25-A of the I.R.O. Is a legal injury which has already occurred and completed. It is not an injury which is likely to occur in future for that would be no injury but apprehension of injury. An application under section 25-A of the I.R.O. 1969 is, therefore, different from a suit for restraining the defendant from committing breach of contract or injury contemplated in rule 2, Order XXXIX, C.P.C. In order to be maintainable an application under section 25-A of the I.R.O. 1969 must he about a grievance which has already taken place. An application for temporary injunction on the other hand can only be made in a suit where breach of contract or the injury though apprehended but has not been committed by the defendant. A Looking at the four prayers in the main application under section 25-A it is easy to discent that they relate to the grievances, which have already taken place. Their two grievances in the main petition relate to the denial of wage and non-payment of arrears of wages on account of weekly rests and festival holidays. The other two prayers are for being treated as permanent Calligraphists while they have been admittedly treated as temporary Calligraphists and for being restrained from being considered in a different set of category for terminating their services. Tbis is also admitted to have taken place already as stated at page 7 of the application under section 25-A. In these circumstances since no suit or application for restraining the defendant from committing the breach of contract or injury is pending, the application under Order XXXIX, rule 2 is misconceived and incompetent and is liable to be dismissed on this ground alone.
7. The main petition from which this application under Order XXXIX, rules 1 and 2 flows has been filed under section 25-A of the I.R.O., 1969. Subsection (4) of that section contemplates the grievances to be taken to a Labour Court. An individual workman's grievances could however be brought also before the N.I.R.C. In virtue of the powers conferred on it under section 22-A (8) (g) read with section 22-B (3) (a) of the I.R.O., 1969 which provides, in essence, that in relation to cases based on unfair labour practice brought before the Commission for redress of individual grievance in respect of any right guaranteed or secured to any employer or workman, the Commission may perform such functions and exercise such powers as are performed and exercised by a Labour Court. Now subsection (4) of section 25-A states that...."where the matter is taken to the Labour Court it shall give a decision within seven days from the date of the matter being brought before it as if such matter were an industrial dispute". Thus, it is apparent that the matter of an individual workers grievance is to be treated like industrial dispute. For dealing with these matters section 36 of the Ordinance ibid which prescribes the powers of a Labour Court states as follows :-
36. Procedure and powers of Labour Court.-(1) ......
(2) A Labour Court shall, for the purpose of adjudicating and determining any industrial dispute, be deemed to be a Civil Court and shall have the same powers as vested in such Court under the Code of Civil Procedure, 1908 (Act V of 1908) including the powers of :
(a) enforcing the attendance of any person and examining him on oath.
(b) compelling the production of documents and material objects, and
(c) issuing commissions for the examination of witnesses or documents.
7. Some of the functions of the Labour Courts are given in subsection (5) of section 35 which is reproduced :
35. Labour Court-(1)................................
(2) ... ... ... ... ... ...
(3) -
(5) A Labour Court shall. . . .......
(a) Adjudicate and determine an industrial dispute which has been referred to or brought before it under this Ordinance.
(b) Enquire into and adjudicate any matter relating to the implementation or violation of a settlement which is referred to it by the Provincial Government.
(c) Try offences under this Ordinance (and such other offences under any other law as the Provincial Government may by notification in the official Gazette, specify in this behalf).
(d) Exercise and perform-such other powers and functions as are or may be conferred upon or assigned to it by or under this Ordinance (or any other law)".
9. The purpose of citing these powers and fanctions of the Labour Courts is that the Labour Courts for the purpose of adjudicating and determining any industrial dispute which includes the individual grievance also, shall be deemed to be a civil Court and enjoy the powers of such Court. These powers are however limited to the extent of adjudicating and determining an industrial dispute. The powers under Order XXXIX, rules 1 and 2 are not included in the powers of adjudicating and determining any industrial dispute, hence neither a Labour Court nor this Commission has the authority to pass any order in the nature of interim injunction under Order XXXIX, rules 1 and 2, C.P.C. This view of the law has been well-settled. One could refer to the authoritative dictum of Mr. Tufail Ali Rehman, Chief Justice in a Division Bench of Sind High Court in Brooks Bond Limited v.
Second Sind Labour Court Karachi or to that of Mr. Z. A. Channa, J., Labour Appellate Tribunal Sind's judgment in Abdul Razak v. Divisional Mechanical Engineer, Pakistan Railways Sukkur . This, therefore, is another ground on which this application is liable to be dismissed.
10. Subsection (1) of section 22-F of the I.R.O. Provides that the Commission may make regulations relating to its procedure and performance of its functions. These regulations shall have effect notwithstanding anything inconsistent therewith contained in the Evidence Act, 1872 (I of 1872) the Code of Criminal Procedure 1898, (Act V of 1898), the Code of Civil Procedure, 1908 (Act V of 1908) or any other law for the time being in force.
Consequently the N.I.R.C. (Procedure and Functions) Regulations, 1973 were framed. Regulations 19 of these Regulations states that :
19. Application of the Code of Civil Procedure, 1908 (Act V of 1908).-Subject to the provisions of these regulations, the proce- C dure prescribed under the Code of Civil Procedure, 1908 (Act V of 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 before the Commission."
This procedure is specified in regulation 33(2) while the procedure for interim relief is provided under regulation 32 (2). Thus, these provisions and not those of Order XXXIX, rules 1 and 2 bad to be invoked for when the law provides a thing to be done in a particular manner, it shall be done in that manner alone or not at all. On that ground also this application is liable to be dismissed.
11. Further, I find that one Abdul Latif Tabassum, General Secetary of the petitioners union had already filed a Criminal Complaint No, 4(121) 82 under section 15 of the Industrial Relations Ordinance, 1969 and secured on the same facts, an injunction against inter alia the same respondents, in favour of the same petitioners and other workers. Respondents are already under orders not to commit any unfair labour practice, and not to transfer, dismiss, discharge or remove from employment the workmen including the present petitioners and that order still holds the field which is the relief sought is this case. In the circumstances an application under Order XXXIX, rules I and 2 for a temporary injunction to the same effect is misconceived and incompetent. This is another ground on which this application is liable to be dismissed.
12. Collectively on the basis of all these foregoing reasons and grounds discussed above I dismiss this application.
PLD 1973 Kai.. 189 1981 PLC 737