It is the case of petitioners that they formed their Union "Workers Union Cool Industries (Pvt.) Ltd." in a meeting held on 22-9-1987 and filed application for its registration as trade union before the Registrar, Trade Unions on 23-9-1987. Both the respondents called all the petitioners individually and threatened them with dire consequences for union formation on 24-9-1987 and also started obtaining signatures on blank sheets purporting to be resignations and pay slips etc. which was refused to be done by petitioners. When the petitioners reported for duty on 26-9-1987 none of them were allowed in, and all of them were locked out. On that the Assistant Director, Labour filed a complaint under section 46-A which is sub judice before Punjab Labour Court No, 1, Lahore. The petitioners also approached NIRC through their union vide Petitions No,4-A (287)/87-L and 24(316)/87-L which were dismissed as the union had no locus standi to bring those petitions. This decision was given on 10-1-1987. The petitioners then filed the instant petition on 18-12-1989 in their individual capacities.
2. Learned Member Lahore passed the following order on the instant stay application against which application under Order 39 Rule 3, C.P.C. has been filed: "Admit. Notice for 26-12-1989. Meanwhile the respondents are directed not to commit any unfair labour practice. They are also advised to immediately lift the lock-out and allow the petitioners to perform their duties. They are further advised that they should restrain themselves from making new employments either on casual or permanent basis in place of the petitioners. However, the respondents shall have the right to engage more workers over and above the present strength if the exigencies of work so demand. The parties shall appear before the learned Senior Member on the date fixed."
3. Arguments of both counsel have been heard. They were asked to present their authorities if any by 2-00 p.m. on 26-12-1989. However no authorities have been provided by learned counsel for the petitioners.
4. The petitioners have urged that contents of the main petition be read as integral part of their stay application. In para. 8 of their main petition they state that when they" reported for work on 26-9-1987 at the gate of the factory, they found the same to be locked out and none of them was allowed to enter the factory premises" However, the report of Assistant Director, Labour under section 46-A, para. 6 tells quite a different story. It states: "That the workers got annoyed on this act of the management and agitated the issue in the afternoon of 24-9-1987 and on 26-9-1987 they did not enter the factory on this account.
Negotiations and extra-legal conciliatory efforts by the undersigned and the Allaqa Magistrate could not bear fruit."
5. Para. 7 states: "That the management was annoyed on this Industrial Dispute and prohibited the workers from entering into the factory premises to perform their normal duties who were forced to sit outside the factory. The workers were also charge sheeted for misconduct about this incident."
6. Para. 6 of report of Assistant Director Labour Welfare shows that the workers conducted strike.
Para. 7 of his report shows that in relation the management conducted lock-out. If this were the case (because I would not give any finding without recording evidence then according to section 46(2) of the Industrial Relations Ordinance, 1969: "A lockout declared in consequence of an illegal strike and a strike declared in consequence of an illegal lockout shall not be deemed to be illegal.
7. And the petitioners shall have no cause of action. But assuming for the sake of argument that the respondent did conduct illegal lockout, still the Commission shall not be clothed with powers and as such jurisdiction to grant status quo ante.
8. The present petition and instant miscellaneous application have been filed on 18-12-1989.
Learned counsel for the petitioners states that the petition and application are both within time as the petitioners genuinely litigated before the NIRC, Lahore Bench on the same cause of action. This is obviously no ground for condonation of delay, firstly, because no application for condonation of delay has been made, secondly because it was not the petitioners who litigated but an unregistered union which has been held to be incompetent to bring that petition viz. 4-A (287/87-L and application 24(316)/87-L. But even if this application was there and was granted on that account, the petition and miscellaneous application will still be barred as it was filed after about eleven months. While the delay of each day has to be explained, in this case absolutely no explanation has been given. On this reason also the petition and the stay application are barred by laches.
9. The powers of the Commission are clearly specified in Regulation 32 of the NIRC (Procedure and Functions) Regulations, 1973. Regulation 32(1) deals with power of the Commission to reinstate a victim where an unfair labour practice has been committed. Regulation 32(2) deals with its powers where an unfair labour practice is likely to be committed. Thus the former is consequential to conviction/ finding of unfair labour practice, while the latter is preventive power. In this case the illegal lockout if any had already occurred way back in 1987 and a direction to lift the lockout and to allow the petitioners to perform their duties was neither covered by Regulation 32(1) nor 32(2) of the Regulations ibid. Further it could not be said that making new employment either on casual or permanent basis in place of petitioners would be or was likely to be an unfair labour practice. Such a direction could not have been given without recording a finding under regulation 32(1) i,e, without finding the employer guilty. Reliance in this behalf is placed on the dictum in the case of Aijaz Hussain Qureshi v. National Industrial Relations Commission PLD 1976 Lahore page 611 which states: "There is no express power conferred on the 'Commission to order reinstatement by way of interim relief while trial of a complaint under section 53 of the Ordinance or Regulation 32 is in progress.
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 discretion 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 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 Regulations 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."
10. Learned counsel for the respondent has presented before me a list of some 54 workers, who, he asserts, have since resigned and cleared their accounts and 31 workers who have since been dismissed but have refused to accept their dues except one. In that view of the matter also the stay cannot be granted.
11. Further it is admitted by the counsel for the petitioners that the petitioners have also filed joint grievance petition under section 25-A before the Punjab Labour Court No, 1, Lahore. This fact has not been stated by them in the petition. Concealment of facts disentitles them to any discretionary relief as held by honourable Supreme Court in Abdul Hafeez v. Board of Intermediate and Secondary Education and others 1983 SCMR 566.
12. The order dated 18-12-1989 also creates an entirely new position while the report of Assistant Director, Labour under section 46-A, I.R.O., 1969 is sub judice. It is admitted fact that after 1987 petitioners have not been taken into employment by the respondents. The order restoring the petitioners to their posts when the very matter is sub judice would not only create status quo ante but would also create a new situation which may be irretrievable or may establish a state of things different from those which existed at the time the relief was sought. Reliance in this behalf is placed on Muhammad Idris v. The Collector of Customs, Karachi PLD 1971 Kar. 736 @ 739 B which states that: " Although the powers of the Court to pass a mandatory injunction in appropriate cases even at interlocutory stage cannot be doubted but as held in a case reported in AIR 1956 Cal. 428 such orders are rare and granted only to restore the status quo and not to create a new situation which may be irretrievable or to establish a new state of things different from those which existed at the time the relief was sought......."
13. For these reasons I would set aside the ad interim order dated 18-12-1989 under Order 39, Rule 4, C.P.C. and dismiss the stay Application No,24 (1174)/89-L also for the aforesaid reasons. The main petition shall come up for filing written statement and arguments on preliminary issues on 29-1- 1990 before me at Lahore.