' Muhammad Hassan Awan, respondent No, 3, (hereinafter called the employee) was initially appointed as a store clerk in a Private Limited Company (petitioner No, 1.) (known as KS B. Pumps Company Limited which has its factory in Hassanabdal, District Campbellpur) and was promoted gradually as a stores supervisor in the year 1966. It is argued by the learned counsel for the petitioners that on account of the abolition of his post by Head Office vide order dated 23-7-1970 his services were terminated with effect from 31-7-1970 as per Annex. 'A' attached with the petition.
Aggrieved of the termination of his services respondent No, 3, on 30-7-1970 filed a civil suit against the petitioners in the Court of a civil Judge, Campbellpur seeking a declaration that termination of his service was mala fide and inoperative. During the pendency of the civil suit, however, Muhammad Hassan Awan employee submitted a petition on 5-5-1973 to the National Industrial Relations Commission (N.I.R.C.) (copy Annexune `E') where upon a learned Single Member of the Commission on 1-6-1973 summoned the petitioners to appear in defence of the case on 26-6-1973, on which date the petitioners filed a written statement and also challenged the authority and jurisdiction of the learned Single Member of the Commission to entertain and take action on a matter which was a past and closed transaction. The learned Single Member, however, decided to proceed on the merits of the case without deciding the preliminary issue as to his jurisdiction and authority, as per his orders dated 26-6-1973. Aggrieved from those proceedings and orders, the petitioners filed W. P. No, 1250/S cf 1973 in this Court which came up for a preliminary hearing before my learned brother S. Rahman, J., on 29-6-1973, when his Lordship was pleased to pass the following order :- "Mr. Sharif Hussain Bokhari, Advocate with Mr. Ayub, Advocate relies on the decision of the Full Beech of this Court in Akhtar Ali v. Altafur Rahman (PLD 1963 Lah. 390) to contend that when an objection is taken to the jurisdiction of the Tribunal that objection must be treated as a preliminary objection and must be resolved before taking any further action. It is contended that a substantial question relating to the jurisdiction of the Commission to take cognizance of the alleged unfair practice has been raised and factually substantiated in the petition itself. The Commission by inviting evidence on mods and postponing the decision on the question of jurisdiction has violated the recognized principles of law in the matter.
2. Call for comments from respondent No, 2, who has passed these orders. In the meantime proceedings on merits shall be stayed provided that they can be started only after deciding the question of jurisdiction as a preliminary."
2. Taking guidance from the aforesaid order, the learned Single Member of the Commission on 30- 7-1973 determined the question of jurisdiction. He held after dealing with the various points raised before him that the application of the employee before him was not maintains hie, but he could, however, take cognizance of and proceed into this matter in exercise of his suo moto jurisdiction. A copy of his order has been filed in the form of Annexure `G'.
3. The petitioners who are two in number (petitioner No, 1, being the company and petitioner No, 2, being its Administration Manager) filed an appeal which was disposed of by the full bench of the Commission as per its order dated 13-12-1973, copy Annex: 'K', which reads as follows :- "NATIONAL INDUSTRIAL RELATIONS COMMISSION, ISLAMABAD.
' Case No, 2 (2)/73-NIRC.
' Islamabad the 13th December, 1973. Before
(1) Abdul Hamid Malik, Chairman,
(2) Zakaullah Lodhi, Member,
(3) Bashir Ahmed Malik, Member.
I. KSB Pumps Company Limited, Hassanabdal through Secretary, KSB Pumps Company Limited, Garde Trust Building, Lahore.
2. Nuzhat Bokhary, Administration Manager, KSB Pumps Company Limited, Hassanabdal. ............... Appellants versus ' Muhammad Hassan Ex-Store Supervisor, KSB Pumps Company Limited Hassanabdal. ...... Respondent ' Present: Appellants with their counsel Mr. Ayub Bokhari, Respondent with his counsel Maulvi Sirajul Haq ' On 5th May, 1973, a complaint was filed by Muhammad Hassan before the Commission alleging unfair Labour practice against the Management of KSB Pumps Company Limited, Hassanabdal.
The learned Member, Mr. Mamoon A. Kazi, issued notice to the respondents for appearance on 2f th June, 1973. At the outset, the learned counsel for the respondents raised the objection that the Commission has no jurisdiction to entertain the complaint against the respondents. The learned Member, however, initiated proceedings against the respondents. Against that order, the respondents moved the High Court, Lahore in writ petition challenging the jurisdiction of the Commission to entertain the application under section 53 of the Industrial Relations Ordinance, 1969. Theneupon Mr. Justice S. Rehman vide order dated 29-6-73, was pleased to make the following order:- "Call for comments from respondent No, 2 who has passed these orders. In the meantime, proceedings on merits shall be stayed provided that they can be started only after deciding the question of jurisdiction as a preliminary.
' By now, the learned Member has decided the question of jurisdiction vide his order dated 30-7- 1973. He has held that he is competent to initiate proceedings suo motu under section 53 of the Industrial Relations Ordinance, 1969 in exercise of the powers vested in him under section 22-A (9)
(a) of the said Ordinance.
' The respondents (appellants in the present case) have, however, challenged the order dated 30- 7-1973 passed by the learned member in appeal before the Full Bench of the Commission. We however, find that the learned Judge of the High Court did not stay the proceedings. He was only pleased to direct that the proceedings should be started after deciding the question of jurisdiction as a preliminary. Needless to recapitulate that the question of jurisdiction has been decided. There is no bar to keep the trial of the case in abeyance any further. Since the matter qua jurisdiction of the Commission to entertain the complaint is subjudice, we are not prepared to decide this matter in appeal. The respondents (appellants in this case) are directed to get the matter decided by the High Court. This appeal therefore, is infructuous and as such dismissed.
' It will not be out of place to mention that on 26-9-73 we had directed the learned member to keep the trial in abeyance till such time as the orders are announced by the civil Court and the High Court. It is a common ground between the parties that the complainant has withdrawn the civil Case and the High Court never stayed the proceedings of the case. In these circumstances, the order with regard to the staying of proceedings was passed under a mistaken notion and as such it is vacated.
(Zakaullah Lodhi) (Bashir Ahmad Malik) (Abdul Hamid Malik)
Member Member Chairman 13-12-73 13.12-73 13-12-73."
4. The petitioners have come up in writ petition against the aforementioned proceedings and orders to this Court. It may be mentioned that on 7-5-1974 Writ Petition No, 1250/S/73 was withdrawn by the petitioners. My learned brother S. Rahman J. On that date passed the following order:- "Syed Sharif Hussain Bokhari Advocate. Permitted to withdraw without prejudice to the petition against the subsequent order. Dismissed as withdrawn."
5. Learned counsel for the petitioners submitted that since this Court had indicated in its earlier order dated 29-6-1973 that the question of jurisdiction was to be decided by the learned Single Member of the Commission as a preliminary issue, therefore, it meant that that matter was to be decided both by the learned Single Member of the Commission as well as the appellate authority or authorities. In the instant case, though the learned Single Member of the Commission had decided the issue but the learned Full Bench of the Commission refused to decide the appeal against the same observing that "since the matter qua jurisdiction of the Commission to entertain the complaint is sub judice, we are not prepared to decide this matter in appeal. The respondents (appellants in this case) are directed to get the matter decided by the High Court. This appeal, therefore, is infructuous and as such dismissed". This, according to the learned counsel, tantamounts to refusal to exercise jurisdiction in the matter of deciding the appeal. The contention seems to have merit. It is to be pointed out that the civil suit had been withdrawn by employee on 27-9-1973 and when the order by the Full Bench of the Commission was passed on 13-12-1973, no civil suit was pending. No doubt, the earlier writ petition was pending in this Court but that could not render the appeal before the Full Bench of the Commission as infructuous If the learned Single Member of the Commission had the jurisdiction to decide the question of jurisdiction, the same could be done by the appellate forum, namely, the Full Bench of the Commission as well. However, in view of the later development that the writ petition stood withdarwn on 7-5-1974 there is apparently now no hurdle in the way of the Full Bench of the Commission to decide the appeal, which hurdle as above observed did not even earlier exist. It was the view of the Full Bench of the Commission itself that no stay order was operative from the side of this Court and if that was so, then there was no justification to refuse to decide the appeal or to put in other words to refuse to exercise jurisdiction in that respect. The finding of the appellate authority that the appeal before them was infructuous was also not correct, inasmuch as, it was a very much live appeal involving a question on which the High Court had left the authorities concerned to express their views in any manner they liked. However, instead of doing their duty in that respect the appellate authority directed the concerned appellant% to get the points decided from this Court. This was not a lawful direction, inasmuch as, it was the duty of the appellate authority, in the first instance, to determine that question and it was thereafter that recourse could be had to this Court to get determined whether the decision of the Commission was with or without lawful authority. The Commission, it appears, did not comprehend the law on the subject correctly and reversed the process expecting that the question which was to be decided by the Commission itself should be determined first by this Court. The procedure directed to be followed by the Commission was not warranted by any law on the subject.
6. The upshot of the above discussion is that the present writ petition is accepted, the order of the full Bench of the Commission, which suffers from refusal to exercise jurisdiction vested in them by law, is declared to be without lawful authority and of no legal consequence against the petitioners, and is hereby quashed, with the result that the appeal remains pending before the Commission who are directed to do their duty and decide the same in accordance with law after hearing all concerned on the subject. There shall be no order as to costs.