1. ' SYED HAIDER ALI PIRZADA, J.---The petitioners in the above petition have prayed for the following reliefs :- "(a) issue writ in the nature of mandamus to respondents Nos, 2 and 4 to fulfil their obligation by submission of report and becoming co-applicant in case No,23/1989 under section 25-A(10) R/W section 46-A of I.R.O., 1969 and to respondent No,4 to proceed under section 46-A(1), (2) and (3) ignoring the void order of N.I.R.C. Dated 2-2-1989 on Misc. Application No,24(15)/89-K under Regulation 32(2)(c) NIRC (Procedure and Functions) Regulations, 1973;
(b) to issue writ in the nature of mandamus to respondents Nos,5 and 6 to proceed under general law for getting forced signatures on blank papers and vouchers by beating and on the point of fire-arms already reported to them ignoring void order of NIRC dated 2-2-1989;
(c) set aside the order of respondent No,1 dated 30-4-1989 and quash the proceedings of case 4A(13)/89-K under section 22A(s)(g) R/W Regulation 32(2) (c) NIRC (Procedure & Functions)
2. Regulations, 1973;
(d) quash the contempt proceedings of the case No, 7(10)/89-K under section 22-C of IRO, 1969;
(e) to quash the admission of application and proceedings before respondent No, 4 in case No, 3/1989 under section 34 of IRO, 1969 and set aside stay order dated 14-2-1989 staying the proceedings of registration of petitioner union;
(f) grant any other relief/reliefs as may deem fit by this honourable Court in the circumstances of the case."
3. ' The facts leading to the filing of the above petition are that petitioner No, 1 a union formed by the workers of establishment of respondent No, 3 on 7-1-1989 made an application for its registration under Industrial Relations Ordinance, 1969 (hereinafter referred to as the Ordinance) which was received by respondent No, 2 on 12-1-1981. Petitioner No, 1 apprehending that office bearers of the newly formed union could be dismissed or discharged from service by way of victimization by the respondent No, 3 which acts in a manner to un-employ the workers other than those of its choice and to punish and destroy the workers and that was successful, has been violating section 3 of the Ordinance denying freedom of association of workers; therefore in order to seek protection from victimization, petitioner No, 1 informed respondent No, 3 and notified it the names of office bearers on 10-1-1987 under section 8-A of the Ordinance. After three days, when petitioner No, 1 sent the notification under section 8-A of the Ordinance, victimization of the office bearers was immediately resorted to award punishment. An F.I.R. Was not allowed to be lodged. A complaint was served on Joint Director, Labour, West Division, Karachi on 15-1-1989. A meeting was held on 24-1-1989 before the Assistant Director, Labour (Con-II) West Division, Karachi to conciliate between the aggressor employers and victim office-bearers. The employers did not accept their offence. However, they agreed to take Muhammad Shahid Shamim, Muhammad Iqbal, Abdul Razzaq and Muhammad Israil on duty the next day. When they reported for duty, they were not taken on duty and made to sign on blank papers or vouchers under duress.
4. ' The office-bearers of the said Union made an application before the National Industrial Relations Commission, Camp Karachi under section 22-A(8) of the Ordinance with a Misc. Application for the relief against the forced signatures on the blank papers and vouchers of five office bearers and workers must not be beaten to unemploy them, an unfair labour practice which was likely to be committed. NIRC passed prohibitory order in Misc. Application No, 24(13)/89-K. It is the further case of the petitioners that the respondent No, 3 moved an application No, 4A(11)/89-K under section 22A(8)(g) of the Ordinance along with a Misc. Application under Regulation 32(2)(c) of NIRC (Procedure and Functions) Regulations, 1973 bearing No, 24(15)/89-K and by concealing the fact that proceedings under section 46-A of the Ordinance had already been moved by the submission of Form "Y" to respondent No, 2 and misleading respondent No, 1 that it was a case of unfair labour practice which had not been committed but .Was likely to be committed and respondent No, 1 misled and misconceived the law that continuous alleged strike is a criminal offence to be dealt with under section 46-A of the Ordinance and has only criminal liability of detcrent punishment including cancellation of the registration, dismissal of the workers and arrest of the workers without any warrant under section 62-A of the Ordinance. The alleged continuous illegal strike would not even be dealt with under section 52 of the Ordinance as section 46-A of the Ordinance by express desire of the. Legislature over-rides all the other provisions of the Ordinance. However, without determining any fact of strike and lock-out and without hearing the petitioners, respondent No,1 only on the statement of respondent No, 3 assumed on surmises and conjectures that an illegal strike was likely to be committed which NIRC had the jurisdiction to prohibit without hearing the petitioners against whom the order was passed. The petitioners and fellow workers filed comments and legal objections on the maintainability of cases. The respondent No, 1 dismissed the legal objections vide order dated 30-4-1989. The petitioners being aggrieved by the above orders, have filed the present petition.
5. ' In support of the above petition, Mr. Mirza Muhammad Kazim learned counsel for the petitioners argued that respondent No, 1, without any notice of hearing to the petitioners and without hearing them, passed order dated 11-2-1989, the order is liable to be set aside. He further urged that the dismissal of objections vide order dated 30-4-1989 is also liable to be set aside.
6. ' On the other hand, Mr. Talmiz Burney, learned counsel for the respondent No, 3, has supported the above orders. He submitted that the order dated 11-2-1989 cannot be set aside on the ground of want of hearing. He submitted that the objections were rightly dismissed.
7. ' We have heard the learned counsel appearing for the parties. The-impugned order dated 11-2- 1989 was passed on the application of the respondent No,3, a copy of which is on the record. It shows that the respondent No,3 had filed an application under section 22-A(8)(g) of the Ordinance read with Regulation 32(2-C) of the NIRC (Procedure and Functions) Regulations, 1973 praying therein to direct the respondents within and through them the striking workers on respondent No,3's roll as on 31-1-1989 to call off their said illegal strike and to resume their normal duties and not to indulge in slogan raising demonstration, use of abusive language, slow down in work etc. The prayer in the Misc. Application was that the respondents and through them the other workers, may also be directed not to give threats or otherwise indulge in slogan raising, demonstration, preventing managerial-and executive staff from entering the factory premises. It was further prayed in the Misc. Application that "the respondents and through them the other workers be also restrained from disfiguring the factory premises and to conduct themselves in a manner calculated to avoid further acts of unfair labour practice."
8. ' The respondent No,1 passed the following order on 17-2-1989:- "Notice. Meanwhile respondents and persons connected with them are directed to call off illegal strike, resume normal work, refrain from raising slogans, using abusive language, slowing down work, threatening or preventing managerial and executive staff from entering the factory premises, chalking slogans and other writings on walls of factory premises, resorting to demonstrations and to conduct themselves in manner calculated to avoid occurrence of unfair labour practice."
9. ' Section 15 of the Ordinance explains what acts can be termed as "unfair labour practices". The provisions of section 15 also prohibit their commission. Section 22-A of the Ordinance confers power on the National Industrial Relations Commission to deal with an unfair labour practice.
10. Subsection (8) of section 22-A provides functions of the Commission. Sub-clause (I) of section 22- A (8) empowers it to try some offences of unfair labour practice punishable under section 53. Sub- clause (g) empowers to deal with cases of unfair labour practices specified in sections 15 and 16 on the part of employers, workmen, trade unions, or 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 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 22F, measures calculated to prevent an employer or workman from committing an unfair labour practice. Section 22-A(9) confers suo 'motu powers to take up cases of the above type. Under provisions of this sub-clause, the Commission can withdraw from Labour Court or Appellate Authority cases relating to unfair labour practice. Clause
(10) confers on NIRC other procedural powers of either enquiring it directly or getting the same done from the Registrar or a Labour Court.
11. From the above, the following position emerges. The NIRC can entertain cases relating to unfair labour practices directly and can also withdraw cases of the same type from the other given competent forum. A Further, it can punish for unfair labour practice under section 53 and can take preventive measures for recurrence of such practice under section 22-A(g) in accordance with the Regulations made under section 22F.
12. ' Regulation 32 lays down the manner of dealing with unfair labour practices. Regulation 32 (1) concerns labour practices that have been committed while its proviso confers on the NIR Commission a power to order re-instatement of a worker and allow him consequential benefits in addition to awarding punishment under section 53. Regulation 32(2) provides a procedure for dealing with a case where an unfair labour practice is likely to occur.
13. ' It is argued that an interim relief could not be allowed whereas according to Mr. Talmiz, Regulation 32(2) was attracted and that an interim relief could also be allowed.
14. ' The question as to jurisdiction of the Commission under Regulation 32 has arisen before this Court in a number of cases. These cases as well as cases from other Courts were reviewed at length in a case reported in 1984 PLC 1342, of which one of us (Syed Haider Ali Pirzada, J.) was a party, in which inter alia it was observed that the order of the Commission staying transfer upon a Misc.
15. Application in a pending complaint was without jurisdiction.
16. ' In Lever Brothers (Pakistan) Ltd. v. Senior Member, National Industrial Relations Commission and another (PLD 1986 Lahore 90) a Division Bench of Lahore High Court has interpreted the words "where a case of unfair labour practice is likely to occur". The relevant observations at page 99 read as follow:- "The use of word 'may' is of significant import and when read in the proper context with the whole scheme of regulation 32 it appears to have vested a discretion in the Commission to deal with the cases where unfair labour practice is likely to occur. However, the steps and methods which are required to be normally followed have also been spelt out. On a combined reading of sub- regulation (2) and sub-regulation (3) of Regulation 32, the position is placed beyond doubt that it deals with eventualities where any unfair labour practice is likely to occur. If that was not to be the position then the provisions of sub-regulation (3) would be rendered nugatory and surplusage. Its clear import is that where a person whom the Commission had 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. It follows that a direction issued in terms of clause (d) of sub-regulation
(2) of Regulation 32 must have preceded the commission of an unfair labour practice and in spite of it if the unfair labour practice likely to occur was committed, only then it would be open for the Commission to construe it as a circumstance aggravating the offence.
17. ' In the context of the present case, clause (c) of Regulation 32(2) appears to be most apt and relevant. It clothes the Commission in a case where unfair labour practice is likely to occur, with powers to 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. There thus exists a clear distinction between unfair labour practices which have already been committed and those which are likely to occur, of course, in future. The mere fact that an action is pending in respect of the former category, cannot be construed as a clog on the powers of the Commission to prevent or stop unfair labour practice likely to occur. We are not minded to construe the law in a manner as would tantamount to granting a licence to a person facing proceedings for having committed an unfair labour practice, to be free to do such acts and deeds whereby unfair labour practice, is likely to occur. It does not appear to be the intention of law to render the Commission powerless in this behalf and countenance such acts as an on-looker".
18. The scheme of Regulation 32(2) appears by its very nature to be preventive. It is clear that Regulation 32(2) is intended to prevent the apprehended commission of any unfair labour practice. If the Commission cannot pass an interim order to prevent an immediately threatened transgression, even though reasonable material for the same is before it, on the ground that it must firstly comply with Clauses (a) and (b) of sub-regulation (2) of Regulation 32, the very purpose of the Regulation would be lost and the unfair labour practice committed.
19. ' In the instant case, the petitioners did not only appear before the learned Member of the Commission but also filed objections to the maintainability of Miscellaneous Application and they were heard. It is thereafter that the learned Member confirmed the interim order as he found that the respondent No,3 have made out a prima facie case.
20. ' In the facts and circumstances of this case, it appeared to the learned Member that the alleged illegal strike was resorted to press demand of workers to take the disputed employees back on their respective jobs. Mr. M.M.Kazim appearing before the Member NIRC stated that the respondents (petitioners herein) have not committed any act of unfair labour practice, as such there is no necessity of continuing these proceedings. He further stated at the bar that in future they do not commit any act of unfair labour practice and as such there is no necessity of continuing these proceedings. In order to satisfy the petitioners, Mr. M.M. Kazim states at the bar that in future they do not commit any act of unfair labour practice or otherwise violate the orders of the Commission. In view of the statement of Mr. M.M. Kazim at the Bar, this application is disposed of and the security proceedings are dropped. It is true that in the proceedings before the learned Member, these factual matters became disputed questions of fact. It is well settled legal position that this Court ordinarily would not undertake the resolution of disputed questions of fact in exercise of its competent jurisdiction. We find no extraordinary circumstances to adopt a contrary course in this case. It is enough for the purpose of this Constitutional Petition that the Industrial Relations Commission has the jurisdiction to deal with the cases where unfair labour practice is likely to occur. The jurisdictional fact, therefore, is found to exist.
21. ' For the reasons stated above, we do not consider this to be a fit case for interference in exercise of our discretionary constitutional jurisdiction. The result is that Constitutional Petition No,D-564 of 1989 fails and is hereby dismissed. In the circumstances of the case, however, there shall be no order as to costs.