This' order will dispose of an application under Order XXXIX, Rules 1 & 2, C.P.C. Which has arisen in the following circumstances.
2. Muhammad Tufail petitioner was employed in the United Sugar Mills Ltd., Sadiqabad. During the course of his employment, his employer provided him a residential accommodation situated in the Colony of the Mills. At a particular point of time disciplinary action was initiated against the petitioner for having remained absent from duty without leave for more than 10 days. The disciplinary proceedings culminated in his dismissal from service on 19-8-1983. The petitioner felt that he has been victimized on account of his trade union activities. He filed a grievance petition challenging the order of dismissal which is pending in this Court.
3. After the expiry of the period of two months from the date of dismissal the respondent started proceedings to evict the petitioner from the Mills accommodation. The petitioner filed the present application praying that he should be allowed to occupy the quarter till the disposal of his grievance petition. The respondent has opposed it inter alia on the ground that the Labour Court has no jurisdiction to entertain the said application for the grant of temporary prohibitory relief sought by the petitioner.
4. I have heard Ch. Ghulam Qadir, Advocate for the petitioner and Mr. G.M. Rabbani, Advocate for the respondent. Besides, they have submitted lengthy written arguments, from the perusal of which I have drawn the benefit of forming opinion about the fate of this application. The learned counsel for the petitioner has argued that the petitioner's absence during the impugned period was not without leave. He submitted applications duly recommended by his boss. The said applications were returned by the Chief Accountant saying that special instructions have been given by the Management for the office-- bearers of the Union. The instructions are to the effect that leave should not be sanctioned. The presence of leave applications on the record of the respondent makes out a prima facie case in favour of the petitioner that his dismissal was a mala fide act.
Further it was submitted that the petitioner has school-going children. In case he is evicted he will have no place to live. He together with his family members will be put to great inconvenience and will be subjected to mental torture which is irreparable loss. Thus according to the learned counsel, all the ingredients necessary for the issuance of temporary injunction were present in this case.
5. On the contrary, the learned counsel for the respondent has urged that the petitioner has not only to show that he had a prima facie case in support of the main relief of reinstatement in service but he has to show that he has a prima facie case for the issuance of temporary injunction.
Explaining this contention the learned counsel has submitted that it is essential for the petitioner to prove that an application for temporary injunction in the circumstances of the case alleged by him is competent in law. Where the Legislature has shut doors of temporary injunction on him by making statutory provision. The court will be loathsome in affording him any relief: The learned counsel emphasized that section 16 of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 constitute bar to the grant of relief of temporary injunction.
6. Ordinarily the arguments advanced by the learned counsel for the petitioner entitle him to the relief but if the contention of the respondent prevails his application will have to be thrown away as being incompetent. For the purpose of this case subsection (1) of section 16 is relevant and is re- produced hereunder:- "Notwithstanding the provisions of any law for the time being in force, including those of the West Pakistan Urban Rent Restriction Ordinance, 1959 (West Pakistan Ordinance No. VI of 1959) a workman occupying residential accommodation provided by his employer, who has resigned or retired, or has been retrenched, discharged or dismissed, or whose services have been terminated, shall vacate such accommodation within a period of two months from the date of his retrenchment, discharge, dismissal or termination of services, as the case may be, provided that in case of reinstatement of the workman, the employer shall be bound to provide him with similar residential accommodation from the date of such reinstatement or pay him per mensem an allowance in lieu thereof at the rate of three times the wages of the last full working day."
The words "notwithstanding the provisions of any law for the time being in force", have special significance. By using these words the legislature has stopped a workman from availing any provisions of law including Order XXXIX, rules 1 & 2, C.P.C. In relation to the relief provided to an employer in the scheme of this section. The legislature appears to be emphatic on this scheme because the words quoted above are followed by "including those of the West Pakistan Urban Rent Restriction Ordinance, 1959". The idea behind this provision of law can easily be inferred. If provisions of residential quarter to a workman is deemed in the nature of tenancy even the Rent Controller was divested of his jurisdiction in the matter. The, procedure for eviction in case of failure of the workman to vacate the premises has been provided in subsection (2) that is by way of resort to the Illaqa Magistrate.
7. The provisions of section 16 are not directory in nature. The provisions are mandatory in their application because the consequences of compliance and non-compliance have been provided therein. A dismissed worker on reinstatement will have to be provided similar accommodation by the employer. If he fails to do so he has been obliged to pay an allowance in lieu thereof at the rate of three times the wages of last full working day. When a workman fails to vacate the house within two months the employer has a right to lodge a complaint with a Magistrate who may summarily decide the matter and may pass an order of eviction. The intention of the legislature manifestly is that the employer and his workman should contest the issue of eviction in the court of Magistrate. It is also in the nature of implied exclusion of the jurisdiction of this court in the matter of eviction or non-eviction of a workman from the accommodation given by the employer.
8. I am, therefore, in agreement with the learned counsel fort the respondent that an application for temporary injunction is not competent. This aspect of the matter was not considered by the)" superior courts, and therefore, makes it distinguishable.
9. In view of what has been said above, I dismiss the application and the stay order already granted is vacated.
A.E./266/Lb.P.