The relevant facts for the decision of this Constitutional petition are that the petitioner No. 1 is a group of industries while petitioner No. 2 is its Director Administration. Respondent No.2 was serving as Deputy Manager (Administration) in D.G. Khan Cement Company when his services were terminated on 28th November, 1995. He challenged this order through petition under section 22- A(8)(g) of I.R.O., 1969 before respondent No.1 who proceeded to issue interim order on 6-12-1995 whereby the transfer order dated 25-10-1995 and order of termination dated 28-11-1995 were suspended till the disposal of the case The petitioners tried their level. Best to get justice for long 16 months from respondent No.: and ultimately were constrained to file this Constitutional petition.
2. It is argued that respondent No.2 was not covered by the definition of "workman" or "worker" therefore, respondent No.1 has no jurisdiction in the matter. It was maintained that the case was riot covered by the mischief of "unfair labour practice". Petition was admitted to hearing and the notices were issued to the respondents but respondent No. 2 alone has appeared and contested the petition.
3. The learned counsel for, the petitioners argued that respondent No. 2 was employed as Deputy Manager (Administration) at a salary of Rs.16,000 per month, therefore, he was neither covered by the definition of "workman" nor "worker" and as such could not maintain petition before respondent No. 1. It is added that it was not a case of "unfair labour practice" which is to be qua the "worker" or "workman", therefore, respondent No.1 had no jurisdiction in the matter. It is argued that the proceedings were coram non judice and misuse of the authority, therefore, could be challenged straightaway through Constitutional petition. In this behalf the learned counsel has referred to the cases of Dr. Ijaz Hussain Qureshi v. N.I.R.C. Etc. (PLD 1976 Lah. 611) and M/s. Rice Export Corporation of Pak. Ltd. v. Karachi Metropolitan Corporation through Director (PLD 1990 Karachi 186).
4. On the other hand, the learned counsel for the respondent No. 2 argued that since the matter is pending before respondent No. 1, which has now been properly constituted, therefore, -the petitioners may be directed to first agitate these questions before respondent No. 1. It is added that a party, which has an alternate remedy cannot invoke the Constitutional jurisdiction. In this behalf the learned counsel has referred to the judgments reported as Dost Muhammad Cotton Mills Ltd., Karachi v. Muhammad Abdul Ghani and another (PLD 1975 Karachi 342), Pak News Ltd. v. Sind Labour Court No.2 and 2 others (PLD 1976 Karachi 73), Muslim Commercial Bank Ltd. v. Punjab Labour Appellate Tribunal and others (1991 SCMR 46), National Bank of Pakistan v. Punjab Labour Court No. 7, Gujranwala and 7 others (1992 SCMR 1891) and General Secretary, Karachi Electric Supply Corporation Ltd. Labour Union, Karachi v. Registrar, National Industrial Relations Commission, 40 Masjid Road, F-6/4, Islamabad and 3 others 1987 PLC 340.
5. I have given my anxious consideration to the arguments of the learned counsel for the parties and gone through the record. The "unfair labour practice" is qua "the worker" or "the workman" and not anybody else. The admitted position is that respondent No.2 was employed as Deputy Manager Administration. It was pleaded by him in the petition before respondent No. l that the petitioners suspected him to be indulging in the labour activities while para. No. l of his petition before respondent No. l read as under: ---------.That the petitioner has been performing his assignments under the respondent for the last 13 years quite satisfactorily. Being his functions as Deputy Manager (Administration) he has to contact the Labour Union for law and order situation and pleasant atmosphere. He has these dealings with the Labour Union and the respondents suspected the petitioner to be indulging in the labour activities In para. No.8 it was alleged that he was victimised for suspicion of his having unfair labour practice.
The same reads as under:-- "8 ---..That the petitioner has been victimised for the suspicion of his having unfair labour practice which he had to deal in his official assignments as an officer of Administration .... "
The accumulative fact of the above pleadings is that no unfair labour practice qua the petitioners was alleged, which is the condition precedent for maintaining an application under section 22- A(8)(g) of I.R.O., 1969. Unfair labour practice on the part of the employees has been defined in section 15 of the I.R.O. The case of respondent No. 2 is not covered by any part of this provision.
6. The learned counsel for respondent No. 2 referred to the case of 'National Bank' in which it was held that the bank has never issued any letter appointing the employee as Manager, therefore, he was treated as workman. The same was the case of "Dost Muhammad" (supra) while in the case of M.C.B. (supra) it was held that it was a case of concurrent findings of fact that the employee was a workman, therefore, the same is also not attracted. The other to judgments are not relevant.
Whereas the petitioner was admittedly the Deputy Manager (Administration) of a Company and he has himself admitted in paras. Nos. l and 8 that it was his function to contact the labour union for law and order situation in pleasant atmosphere thus he was to deal with the workers, therefore, the case in hand is quite distinguishable from the precedent cases. The argument of the learned counsel himself that the designation or the salary are irrelevant for determining whether one is worker or not. The designation is to be seen in the light of the duty one has to perform. Respondent No. 2 in this case, as already noted above, was responsible for administration in the Mill. He as p per his own showing was to deal with the labour union while himself was neither Member or office- bearer of any of the union, therefore, not covered by the definition of "workman" or "worker", who could maintain petition before respondent No. 1.
7. Now coming to the preliminary objection that the petitioners should raise this legal controversy before respondent No. 1. On the other hand, the learned counsel for the petitioners argued that the petitioners were constrained to file this petition after waiting for long 16 months for the decision of the matter by respondent No. 1. The proceedings before 8 respondent No. l were manifestly illegal and without jurisdiction, therefore, the Constitutional jurisdiction should be invoked straightaway.
The learned counsel for the petitioners has referred to the judgments in the case of "M/s. Rice Export Corporation" and "Dr. Ijaz Hussain Qureshi" (supra). This is not all. The matter can be looked from another angle namely that the order of reinstatement was to flow from the final judgment holding the petitioners is guilty of unfair labour practice and to borrow the words of Mr. Justice Shafiur Rahman, J., as his Lordship the then was, in the case of "Dr. Ijaz Hussain Qureshi", the pre- condition of finding of guilt has to be satisfied before the power to direct reinstatement either finally or as interim measure, can be ordered. The relevant portion reads as under:-- " ------..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 interim relief. Keeping in view the scheme of the Ordinance and the Regulation the power to direct re-instatement 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------------ As a result of these findings the impugned interim order of the Chairman, N.I.R.C. Was set aside by accepting the writ petition. The same remarks applied with full force to the case in hand. The Chairman, N.I.R.C. Before assuming the jurisdiction neither cared to go through the contents of the petition nor the provisions of law.
8. It is a matter of great regret that the Government makes appointments to such sensitive posts recklessly. The Government, if serious to keep these institutions for the industrial peace in the country then these Tribunals have to be manned by persons of integrity and quality otherwise it would amount to sheer wastage of public funds. Let a copy of this judgment be sent to Mr. Muhammad Zaman Qureshi, newly appointed Chairman, N.I.R.C. To take-up the matter in the concerned quarters.
9. The upshot of the above discussion is that the order dated 6-12-1995 passed by respondent No.1 is declared illegal and without jurisdiction by accepting this writ petition with costs.