DECISION These two revision applications are directed against the order of learned Presiding Officer, Sindh Labour Court No,II at Karachi, dated 1-3-1989. The applicants have prayed this Tribunal to call for R & Ps of the 2 grievance applications filed by the respondents and to examine the legality of the impugned orders. As the points of law and facts involved in both the cases are same, I will dispose them of by this single decision.
2. The admitted facts are that the respondents were workmen working with the applicants. The applicants had charge-sheeted the respondents and ordered holding of enquiry against them. The respondents alleged that they were being victimized for their trade union activities and, therefore, the action of the applicants in charge-sheeting them amounted to unfair labour practice, therefore, filed two applications under Section 22-A (8) of the Industrial Relations Ordinance, 1969, before the National Industrial Relations Commission. The learned Member of the N.I.R.C. issued interim order directing the applicants to proceed with the enquiry but not to take action before the enquiry proceedings were submitted for scrutiny before the N.I.R.C. After all the enquiry proceedings were submitted, the learned Member vacated his interim orders on 5-10-1987. On 7- 10-1987 the applicants dismissed the respondents from service. Being aggrieved by these orders, the respondents after serving the grievance notices upon the applicants, filed grievance petitions before the learned Labour Court on 16-11988. The petitions before the N.I.R.C. continued pending till they were withdrawn by the respondents on 25-8-1988. The applicants raised preliminary objections before the learned Labour Court challenging the maintainability of the grievance petitions in view of proviso to sub-section (12) of section 22-A of the I.R.O., 1969. The learned Labour Court, in the first instance, passed an order that the objection would be considered at the time of final decision after the evidence was recorded. Aggrieved by this order, the applicants filed revision petitions in this Tribunal which were allowed by this Tribunal and the learned Labour Court was directed to decide the legal objections first. The learned Labour Court, vide impugned orders, dismissed the legal objections of the applicants.
3. I have heard Mr. A. Hafeez, learned Advocate for the applicants. None was present for the respondents. However, Messrs M.L. Shahani, A. Majeed, S.P. Lodhi and Mahmood A. Ghani, who were issued notice by this Tribunal, were heard as Amicus Curiae. Before I proceed further, I must record my appreciation for the valuable assistance rendered by the above mentioned, gentlemen to the Tribunal as Amicus Curiae.
4. It may be pertinent to reproduce certain relevant provisions of Section 22-A, I.R.O., 1969:-- 'Section 22-A(8)--The following shall be the functions of the Commission namely. xx xx xx xx
(c) to adjudicate and determine an industrial dispute to which an industrywise 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; xxxxxxxx
(f) to try offences - punishable under--
(i) section 53, other than subsections (1) and (5)--
(ii) any other sections, in so far as they relate to employers or workers in relation to an industrywise 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; xxxxxxxx
(12) Nothing in this section shall be deemad to exclude the jurisdiction of Labour Court to entertain cases of unfair labour practices on the part of employers or workmen, whether individually or collectively: Provided that no Court including a Labour Court shall take any action or entertain any application or proceedings in respect of a case of unfair labour practice which is being dealt with by the Commission."
5. Under clause (c), the N.I.R.C. has powers of adjudication. Under Clause (f) the N.I.R.C. has powers to try offences and under clause (g) the N.I.R.C. has powers to deal with the cases of unfair labour practices. In the instant cases, the petitions filed by the respondents before the N.I.R.C. were being dealt with by it under subsection (8) (g).
6. Under clause (g), the N.I.R.C. could deal with unfair labour practices in the manner laid down under Section 25-A or Section 34 or Section 53, I.R.O., 1%9, or in any such other manner as may be prescribed and take measure prescribed by Regulations under Section 22-F to prevent commission of unfair labour practices. In exercise of powers under Section 22-F, the N.I.R.C. with a prior approval of the Federal Government framed Regulations, namely, "National Industrial Relations Commission (Procedure and Functions) Regulations, 1973,. Regulation No,32 which is relevant, is reproduced 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 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 nay 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 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.
(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.
7. If clause (g) and Regulation 32 are read together it will be seen that the N.I.R.C. does not have absolute discretion to deal with every matter either under section 25-A or 34 or 53, but, it depends on the nature of the case. If the case does not fall under the purview of section 25-A, 34 or 53, then, it will deal with the case in other manner as may be prescribed and this manner is prescribed in Regulation No, 32 (2) reproduced above. The nature of respondents' cases before the Commission can be judged from the prayer made by the respondents in their petitions before the N.I.R.C. which reads as under :- "It is prayed that this Hon'ble Commission may be pleased to order the accused persons not to act in furtherance of unfair labour practice by way of any further disciplinary action on the basis of issued charge-sheets dated 24-8-1985, and withdraw it forthwith."
8. It will be seen that after the learned Member, N.I.R.C. vacated the interim order and the respondents had been dismissed from service on 7-1-1987, the prayer contained in these petitions was incapable of being granted and in fact the petitions had become infructuous. However, these petitions were neither dismissed by the N.I.R.C. as infructuous nor they were withdrawn by the respondents, therefore, continued to be pending when the respondents filed their grievance petitions before the learned Labour Court. However, admittedly these petitions have been later dismissed as withdrawn as pointed above. The question that arises is as to "whether pendency of these petitions would bar the institution of the grievance petitions before the learned Labour Court in view of the proviso to subsection (12) reproduced above.
9. It may also be relevant to reproduce relevant provisions of Section 25-A, as under:- "Section 25-A, I.R.O., 1969. Redress of individual grievance.--(1) A worker may bring his grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement for the time being in force to the notice of his employer in writing either himself or through his shop steward or collective bargaining agent, within three months of the day on which cause of such grievance arises;
(2) Where a worker himself brings his grievance to the notice of the employer, the employer shall, within fifteen days of the grievance being brought to his notice, communicate his decision in writing to the worker;
(3) Where a worker brings his grievance to the notice of his employer through his shop steward or collective bargaining agent the employer shall within seven days of grievance being brought to his notice communicate his decision in writing to the shop steward or, as the case may be, the collective bargaining agent;
(4) If the employer fails to communicate a decision within the period specified in subsection (2) or, as the case may be, subsection (3), or if the worker is dissatisfied with such decision, the worker or shop steward may take the matter to his collective bargaining agent or the Labour Court, or, as the case may be, the collective bargaining agent may take the matter to the Labour Court and 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 in an industrial dispute: Provided that a worker who desires to so take the matter to the Labour Court shall do so within a period of two months from the date of the communication of the employer or, as the case may be, from the expiry of the period mentioned in subsection (2) or subsection (3), as the case may be."
10. The petitions filed by the respondents before the N.I.R.C. under section 22-A(8)(g) I.R.O., 1969, were of civil nature in which they sought civil remedy and did not pray for any punishment of the applicants under section 53, I.R.O., 1969. Therefore, the proceedings were apparently not dealt with under section 53 of the I.R.O., 1969. Similarly these proceedings were also not under section 34, I.R.O., 1969, as industrial dispute under the said section can be raised only be the employer or the C.BA., whereas the petitions before the N.I.R.C. were filed by the individuals. It has to be seen whether the N.I.R.C. was dealing with the petitions under Section 25-A, I.R.O., 1969. In the case of Iftikhar Ahmed and others v. National Bank of Pakistan & others, reported in PLD 1988 SC 53, their Lordships have observed that it was not right to construe the clause in question as conferring a general jurisdiction upon the Bench of N.I.R.C. to entertain all kinds of grievance petitions even though they may not be relatable to unfair labour practices. Apart from that, section 22-A(12) specifically recognises the competence of Labour Court, albeit subject to some qualification to entertain petitions arising out of the unfair labour practices." Thus, the Labour Courts have got exclusive jurisdiction under section 25-A, I.R.O., 1969, with regard to grievance petitions based on cause of action not relatable to unfair labour practice, but, with regard to grievance petitions based on unfair labour practices, both the Labour Court as well as the Benches of N.I.R.C. have got concurrent jurisdiction. In the case reported in PLC 1980 at page 752 (M. Atiquallah and 2 others v. Khuda Bukhsh Baloch and another), a learned Single Judge of Karachi High Court, Zaffar Hussain Mirza J, as his Lordship then was, had observed that the remedy before the Commission under section 25-A is an independent and additional remedy dealing inter alia with cases of dismissal by way of victimization of a workman on account of trade union activities."
11. Section 25-A(1) requires, that before the workman enforces his right through the Court, he has to give grievance notice, in writing, to the employer. The question that arises is whether this notice is necessary only when the workman takes its grievance to the Labour Court under section 25-A or it would be necessary even if he takes his grievance under the said section before the N.I.R.C. The jurisdiction of both Labour Court and Bench of N.I.R.C. being concurrent with regard to proceedings under section 25-A, which involve unfair labour practices, it cannot be said, that the notice is not necessary if the workman takes his grievance before the N.I.R.C. In the petitions before the N.I.R.C. filed by the respondents, no grievance notice appears to have been given as required under section 25-A(1). Thus, the petitions could not be deemed to have been dealt with by the learned Member, N.I.R.C. under section 25-A. I have already pointed that under clause (g) the Commission could deal with cases in the manner laid down under sections 25-A, 34, 53 or in such other way as may be prescribed. Therefore, the cases would be considered to have been dealt with by Commission in other manner as is presecribed. This manner of dealing with is prescribed in Regulation No, 32(2) which has been reproduced above, under which the N.I.R.C. did not have power to order reinstatement. The proviso to subsection (12) cannot be construed so as to take away or diminish any right conferred by the Industrial Relations Ordinance, 1969 upon the workman. The Labour Laws are enacted for the welfare and benefit of the workmen and have to be interpreted accordingly. In my opinion, this Proviso had been enacted only to prevent multiplicity of proceedings, possible conflict of judgment between the two forums and also on the principles of res judicata, as the matter filed earlier is expected to be decided earlier.
12. The present grievance petitions filed by the respondents before the learned Labour Court are based on cause of action of dismissal which was not available to the respondents when they filed the earlier petitions before the Furthermore, the respondents have not attacked the order of dismissal only on the ground that they were victimized because of their trade union activities, but, also on the grounds that the enquiry was not conducted fairly, that they were not supplied the copies of the documents to enable them to put their case or to cross-examine the witnesses, or to properly proceed with the case and that they were disallowed the representative etc. These and other grounds are not described as unfair labour practices under section 15 of the I.R.O., 1969. It will be depriving the workman of his basic right under section 25-A, read with Standing Order 12(3) if he is debarred from pursuing his grievance under section 25-A, I.R.O. 1969, before the Labour Court against his dismissal only because one of the grounds was taken by him in the proceedings before the learned Member, N.I.R.C. prior to his dismissal. There is also no fear of conflict of decisions by two forums, because the petitions before the N.I.R.C. have been dismissed as withdrawn without decision on merits. As such even the decision by the Labour Court on merits on the allegation of victimization would not be hit by principle of res judicata. In my opinion, therefore, the grievance applications filed by the respondents before the learned Labour Court are not barred by the Proviso to subsection (12) of section 22-A, I.R.O., 1969. The revision applications are accordingly dismissed.