ABDUL RAHIM KAZI, J.--By this judgment, we intend to dispose of the above two petitions as they arise from the same order passed by the National Industrial Relations Commission, Islamabad, (hereinafter referred to as the Commission), on the appeal filed by the employers who are petitioners in C.P. No, D-731/1982 and respondents in C.P. No, D-231/1983.
2. The facts leading to the case are that the respondent Khuda Bakhsh, General Secretary of C.B.A.
Union filed the complaint on or about 17-9-1974 for unfair labour practice against the Employers alleging that he had been dismissed from service by way of victimisation on account of his trade union activities which was an offence under section 53 read with section 15(1)(d) of the Industrial Relations Ordinance, 1%9 (hereinafter referred to as the I.R.O.). The prosecution case is that the management had withheld the payment of allowances, Bonus etc., to the Senior Technical Assistants on the alleged plea that they were Supervisors and not the workmen and thus failed to implement the settlement dated 3-8-1974 and consequently, he was compelled to lodge complaint under section 54/55 of the I.R.O. It is also alleged that the management stopped paying height allowance of 30 feet as agreed in the said settlement on the plea that the same required verification. It is alleged that the Manager, Engineering Services, Mr. Farooqui with his party was measuring the heights when the complainant Khuda Bakhsh arrived there and interfered with measurement operation and misbehaved with said Mr. Farooqui. Consequently, a charge-sheet was given to him alleging that he, leaving his place of work interfered with the said operation and in order to pressurise Mr. Farooqui to accept measurements of his choice became rude and physically tried to snatch the measurement papers in spite of being ordered not to do so. Reply to the charge-sheet was given on the following day. Domestic enquiry was initiated and finding him guilty, he was dismissed from service on 22-1-1975.
3. That the then Chairman of the Commission transferred the complaint for disposal to the HI Sind Labour Court. The petitioners in C.P. No,D-731/1982, filed a constitution petition challenging the said transfer order. The constitution petition was ultimately allowed with the result that the complaint was recalled and taken up for hearing by the learned Senior Member of the Commission who accepted the prosecution evidence, found the three petitioners guilty and sentenced them till rising of Court and to pay a fine of Rs,4,000 each. It was further directed that the complainant be reinstated in service from the date he was dismissed with the benefit of continuity of service and payment of wages for ten months only for which period he had remained unemployed. It was further directed that another sum of Rs,5,000 be paid to him by way of compensation and also further amount of Rs,2,000 be paid to him from out of the amount of fine realized.
4. The petitioners in C.P. No, D-731/1982, filed the appeal and the Commission was pleased to set aside the order of the learned Single Member except that the order of the reinstatement of complainant with back benefits and full wages for ten months was maintained.
5. We have heard the learned counsel for the parties. Mr. Hassan A. Shaikh, appearing for the management has assailed the impugned order only to the extent of reinstatement of the complainant with back benefits. He has stated that the complaint falls under the provisions of clauses (f) & (g) of subsection (8) of section 22-A of the I.R.O. It will be advantageous to reproduce section 22-A (8), which reads as under:- "(8) The following shall be the functions of the Commission, namely -
(a) to promote the formation of trade unions of workers within the same industry whether in establishments within a Province or in more than one Province and federations of such trade unions;
(b) to promote the formation of federations at the national level;
(c) to adjudicate and determine an industrial dispute to which an industry-wise trade union or a federation of such trade unions is a party and any other industrial dispute which is in the opinion of the Federal Government of national importance and is referred to it by that Government;
(d) to register industry-wise trade unions, federations of such trade unions and federations at the national level;
(e) to determine the collective bargaining agents amongst industry-wise trade unions, federations of such trade unions and federations at the national level;
(f) to try offences punishable under-
(i) section 53, other than subsections (1) and (5) thereof; and
(ii) any other sections, insofar as they relate to employers or workers in relation to an industry-wise trade union, a federation of such trade unions, a federation at the national level or officers of such union or federation;
(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;
(h) to advise Government, industry-wise trade unions and federations in respect of the education of workers in the essentials of trade unionism, including education in respect of their rights and obligations, and to secure the provision of facilities required therefor, and to apportion the cost thereof between the Provincial and Federal Governments, industry-wise trade unions, federations of such trade unions and federations at the national level, and the employers, in such manner as may be considered equitable by the Commission; and
(i) such other powers and functions as the Federal Government may by notification in the official Gazette, assign to it from time to time."
6. Mr. Hassan A. Shaikh has also referred to the provisions of Regulation 32 of the National Industrial Relations Commission (Procedure and Functions) Regulations 1973, which provides as under:-- "32. Manner of dealing with unfair labour practices.--(1) Where an unfair labour practice has been committed, and the case falls under section 25A, 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 reinstatement of a worker and allow consequential benefits to him.
(2) Where a 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 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.
(3) Where a person whom the Commission has reprimanded or warned under sub-regulation (2) commits an unfair labour practice, the Commission may consider, for the purpose of awarding punishment under section 53, the reprimand or warning as a circumstance aggravating the offence."
He has further argued that the proviso to sub-Regulation (1) above clearly shows that the Commission can order the reinstatement of the worker only in case the punishment for unfair labour practice under section 53 I.R.O., is awarded and not otherwise. He has further contended that in the instant case, the Commission could not maintain the order of reinstatement of the worker when the conviction has been set aside. He has placed reliance on the case of Dr. Aijaz Hussain Qureshi v. National Industrial Commission and 2 others PLD 1976 Lah. 611. In this case, it has been observed at page 615, as under:- "10. It is clear from this survey of law on the subject that there is no express power conferred on the Commission to order re-instatement by way of interim relief while trial of a complaint under section 53 of the Ordinance or Regulation 32 is in progress.
11. The regulations do have a statutory basis and force and they do expressly provide and empower the Commission to direct the re-instatement 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 finding of guilt of the employee that a further discretion is required to be exercised in the matter of directing the reinstatement of the employee. In other words the precondition of the finding of guilt has to be satisfied before the power to direct reinstatement 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."
7. Mirza Muhammad Kazim, learned counsel for the worker respondent has contended that sub Regulation (1) of the above said Regulation 32 shows that the Commission had the authority to exercise jurisdiction when the case comes under the provisions of Sections 25-A, 34 or 53 and could order reinstatement. He has also contended that the Commission had the power to grant the relief of reinstatement in appropriate cases.
8. Replying to the above contention Mr. Hassan A .Shaikh advocate has submitted that no such relief of reinstatement was sought for by the workman and the Commission could not grant such relief. He has placed reliance on the case of Sethi Cotton Ginning & Pressing Factory v. Presiding Officer, Labour Court No,VI Hyderabad 1980 PLC 253.
9. The perusal of the above Regulation clearly reveals that the power of reinstatement as embodied therein is not independent or ancillary or incidental to the process of adjudication but is dependent on finding the person standing trial to be guilty under section 53 of the I.R.O. The power of reinstatement could only have been exercised in case of awarding punishment for unfair labour practices A and not in case of acquittal of the charges. We, therefore, hold that the orders of the Commission to the extent of maintaining the order of the Senior Member with regard to reinstatement of the respondent (Khuda Bakhsh) with back benefits and full wages for ten months is without lawful authority and quash the same.
10. As far as the factual aspect of the case is concerned, no arguments have been advanced by the learned counsel. However, in exercise of the constitutional B jurisdiction we will not interfere with the findings of facts and will maintain the findings of the Commission.
11. In view of the above discussion we allow the petition No,D-731/1982, while Constitution Petition No,D-231/1983 is dismissed. However, there will be no order as to costs.