' The petitioner which is a public limited company has filed this constitutional petition under Article 199 of the Constitution, 1973 calling in question the interim order dated 19-11-1998 passed by Presiding Officer-II, Sindh Labour Court, Karachi in a matter arising under section 25-A of the Industrial Relations Ordinance, 1969 (hereinafter referred to as the I.R.O. 1969).
2. The facts leading to filing of the instant petition are that the respondents Nos,2 to 54 are employees of the petitioner and have served for periods ranging from 2 to 5 years. In the month of October, 1998, they filed a joint application under section 25-A (10) of the I.R.O., 1969 against the petitioner seeking direction from the Labour Court to treat them as permanent employees with all benefits which they are in law entitled. The present controversy arose during pendency of the said grievance petition before the Labour Court when the applicants (herein respondents 2 to 54) filed an application for stay seeking interim relief to the extent of suspension of verbal termination order dated 6th October, 1998, passed by the petitioner in respect of the private respondents. This application was granted by the impugned order with the following findings:- "Therefore, in my humble opinion the basic requirement to dispense, justice would not be met with in the present case, if stay is not allowed, restraining the respondent from terminating the services of applicants as otherwise if the services of the applicants are terminated, the whole exercise before this Court would be rendered infructuous as the respondent terminating eight of the applicants in my opinion establishes the fact that if given an opportunity then they would terminate the services of all the applicants which would gravely hamper the function of this Court to exercise power expressly confere upon it effectively and in accordance with the requirements of justice and reason. I also rely upon PLD 1975 Karachi 858, in which it was held that the Labour Court has such powers of Civil Court as are required for adjudication and determination of any industrial dispute and passing status quo order was within the jurisdiction of the Labour Court. The essential ingredients for grant of stay in this case being irreparable loss suffered by the applicants is itself established by the action of the respondent in terminating the services of the eight applicants, so also, I find balance of connivance is in favour of the applicants as they are shown to be employees of the respondent for a considerable period of time, so also a prima facie case has been made out in favour of the applicants against the respondent.
' At this stage I would like to refer to the undertaking made in writing by the learned counsel for the applicants that he would see that no adjournment would be sought for the applicants and will make all efforts for decision of the case within 90 days.
' Therefore, in view of the above discussion I allow this stay application the services of the applicants other than of the eight (8) applicants whose services have been terminated by letter 29-10-1998. Of the respondent, brought on record by the respondent, are not to be terminated from the services of the respondents for a period of 3 months from this order, no further extension shall be granted without sufficient cause The applicants are directed to be present as directed on every date of hearing so as to enable the respondent to cross-examine. When the time arises all of possible steps shall be taken to expedite the hearing of the case. With due respect the case law cited by the learned counsel for the respondent which in my humble opinion I found not applicable to the facts/circumstances of the present case.
' The above opinion is tentative in nature meant only for disposal of this stay application, it shall in no way prejudice the hearing of the case."
3. I have heard Mr. Gulzar Ahmed, Advocate for the petitioner and Mr. Muhammad Nishat Warsi, Advocate for respondents No,2 to 54 at length. The main controversy in this petition is whether the Labour Court was competent to grant interim relief as it was' done through the impugned order. It was argued by Mr. Gulzar Ahmed that a Labour Court while determining the grievance petition under section 25-A of I.R.O., 1969 is not a Civil Court in stricto senso as the dispute before it is not an industrial one. Reference was made to the definition of term industrial dispute' as given in section 2(xiii) of the I.R.O., 1969. Further, reliance was placed on subsection (2) of section 36, sections 43 and 26 of the I.R.O,, 1969, Learned counsel for the petitioner went to the extent of saying that even in the case of an industrial dispute as per section 43, a Labour Court is not competent to pass any interim or interlocutory order except as provided in proviso to section 32(4) of the I.R.O., 1969.
According to Mr. Gulzar Ahmed, there is no other provision in the I.R.O., 1969 through which an interim relief could be granted. Then, it was argued on behalf of the petitioner that if an identical power as of Order XXXIX, C.P.C. Is conferred upon a Labour Court, then no employer will be in a position to take any disciplinary or any other departmental action against a worker as the latter would rush to the Labour Court to seek a prohibitory injunction. It was contended by Mr. Gulzar Ahmed that it was due to this reason that the legislators have not conferred such powers on the Labour Courts as it
(i) Brooke Bond (Pakistan) Ltd. v. 2nd Sindh Labour Court Karachi and another (PLD 1973 Karachi 189);
(ii) Director-Ceneral of Associated Press of Pakistan, Islamabad and 4 others v. Rahmatullah (1994 PLC 225);
(iii) United Bank Limited and others v. Ahsan Akhtar and others (1998 SCMR 68);
(iv) Marghub Siddiqi v. Hamid Ahmad Khan and 2 others (1974 SCMR 519);
(v) Muhammad Yaqoob v. The Punjab Labour Court No, I and 5 others (1990 SCMR 1539);
(vi) Hochtief Gammon v. Industrial Tribunal and others (AIR 1964 S.C. 1746);
(vii) The Law of Industrial Disputes by O.P. Malhotra Vol. II, 4th Ed. Bombay, India,
4. It will be seen that the Labour Courts are established under section 35 of the I.R.O., 1.969 for which the Provincial Government is competent to establish as many Labour Courts as necessary, by notification in the official gazette. The purpose of establishing such Labour Courts is mentioned in sub-section (5) of section 35 of the I.R.O., 1969 which includes adjudication and determination of industrial disputes referred to or brought before it under the I.R.O., 1969; inquire into and adjudicate any matter relating to the implementation or violation of a settlement which is referred to it by the Provincial Government; try any offence and any other such offences as notified by the Provincial Government and to exercise and perform all such powers and functions as conferred upon by virtue of I.R.O.
1969. In addition to these functions of the Labour Court as provided under section 35, the I.R.O., 1969 has given vast jurisdiction to a Labour Court for proper adjudication and determination of a dispute before it. In this connection, reference could be made to subsection (5) of section 25-A which provides that during adjudication and determination of a grievance petition under section 25-A (4), the Labour Court shall be competent to inquire into all facts of the case and to pass such orders as may be just and proper in such case. Further, powers are conferred on a Labour Court through section 36 of the I.R.O., 1969. It will be advantageous to refer section 36 as both the parties have heavily relied upon the same. It reads as follows:- '36. Procedure and powers of Labour Court. --(1) Subject to the provisions of this Ordinance, while trying an offence a Labour Court shall follow as nearly as possible summary procedure as prescribed under the Code of Criminal Procedure, 1898.
(2) A Labour Court shall, for the purpose of adjudicating and determining any industrial dispute, be deemed to be a Civil Court and shall have the same powers as are vested in such Court under the Code of Civil Procedure, 1908 (Act V of 1908), including the powers of-
(a) enforcing the attendance of any person and examining him on oath; (h) compelling the production of documents and material objects; and (c) issuing commissions for the examination of witnesses or documents.
(3) A Labour Court shall, for the purpose of trying an offence under the Ordinance or the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (W.P.
Ordinance VI of 1968) have the same powers as are vested in the Court of a Magistrate of the First Class specially empowered under Section 30 of the Code of Criminal Procedure, 1898.
(4) No court-fee shall be payable for filing, exhibiting or recording any document in, or obtaining any document from a Labour Court.
(5) If the parties to a case, at any time before a final order is passed by the Labour Court, satisfy the Labour Court that the matter has been resolved by them amicably and that there are sufficient grounds for withdrawing the case,, it may allow such withdrawal." (Emphasis kid.)
5. The above quoted provision was considered by a Division Bench of this Court in the case of Brooke Bond (Pakistan) Ltd. (supra) upon which Mr. Gulzar Ahmed has placed full reliance. In that case, the. IInd Sinclh Labour Court at Karachi while hearing an application under section 34 of the I.R.O., 1969 passed an interim order under Order XXXIX, Rules 1 and 2, C.P.C. Restraining the petitioner from terminating services of respondents. The said order was challenged through a Constitutional petition where reference was made to the provisions of section 36 of I.R.O., 1969. The said order of lInd Sindh Labour Court was declared to be without lawful authority and of no legal effect with the following observations:-- "That section 36 does not really deal with the powers of 'a Labour Court is made employee clear, I think, by the fact that its main power is conferred by section 35(5) and not section 36; the reference to powers in section 36 is incidental and closely bound up with procedure. It is in subsections (2) and (3) that section 36 makes more careful provision for procedure and powers in two different jurisdictions: in (2) while adjudicating and determining an industrial dispute and in (3) while trying an offence under the Ordinance. I am, therefore, of the view that subsection (2) does not confer upon a Labour Court, while adjudicating and determining an industrial dispute, all the powers of a Civil Court under the Civil Procedure Code but only such of them as may be described as procedural, i,e, such as are required for the purpose of adjudication and determination. Now, it is clearly not necessary in order to be able to adjudicate or determine a dispute, that pending the adjudication or determination, a party be restrained from giving effect to the kind of the order of which respondent No,2 complained to the Labour Court."
6. With most respect and deference to the decision of a Division Bench of this Court in the case of Brooke Bond Pakistan Ltd. (ibid), I may say that the phrase used in subsection (2) to section 36 of I.R.O., 1969 "shall have the same powers as are vested in such Court under the Code of Civil Procedure, 1908 including the powers of " was not considered. This aspect of the matter was considered by another Division Bench of this Court in the case Messrs. Merck Sharp & Dohme of Pakistan Ltd. v. Sindh Labour Appellate Tribunal and 2 others (1982 PLC 148 at 156) which judgment was authored by Mr. Ajmal Mian, J. (now Chief Justice of Pakistan). Reference was made to sections 25-A, 36 and 38 of the .I.R.O., 1969 as well as to several reported cases including Cresent Jute Products Ltd., Jaranwala v. -Muhammad Yaqoob etc. (PLD 1978 SC 207) whereafter it was held as. Follows:-- "9. In our view, section 36(2) of the I.R.O. Was not enacted with the object to curtail the powers of the Labour Court or of the Labour Appellate Court but it is an enabling provision conferring additional powers in addition to the powers contained in the I.R.O., since in the I.R.O no provision was provided for summoning witnesses etc. The above section 36(2) provided that a Labour Court shall be deemed to be a Civil Court and shall have the same powers as are vested in such Courts under the Civil Procedure Code, including the power of enforcing the attendance of any person and, examining him on oath or compelling the production of the, documents and material object and issuing of commission for the examination of witnesses or documents. The jurisdiction of a Labour Court or an Appellate Court is referable to section 25-A of I.R.O., which provision is wide in its scope unfettered with technicalities as to the mode of the trial. It may again be mentioned that the Supreme Court of Pakistan while construing the above provision in the aforesaid case reported in PLD 1978 SC 207, has pointed out that the above provision is of wide import, which, inter alia, empowers a Labour Court to examine the record of the inquiry and to decide independently whether the impugned action was justified and warranted by law..... " (Emphasis added).
' The above view was followed by me in the case of Shafi Muhammad v. Presiding Officer Labour Court No, VI at Hyderabad and 2 others (1996 PLC 446) where after reference to section 36(2) of the I.R.O., 1969, it was held that the Labour Court for the purpose of adjudication and determination of an industrial dispute shall be deemed to be a Civil Court and shall have the same powers as are vested in such Court under the Code of Civil Procedure, 1908 including the powers of enforcing attendance, compelling the production of documents and issuing commission for examination of witnesses.
7. The Lahore High Court has also earlier dealt with the present proposition of law in Hafiz Muhammad Ishaque, etc. v. Punjab Labour Appellate Tribunal, etc. (NIR 1978 Labour 466) where a learned Single Judge, Shafiur Rehman, J. (as his lordship then was) while hearing a writ petition held, inter alia, that the Labour Court has power under section 25-A to direct status quo ante or pass an interim order restoring to office such persons whose termination was in issue. It was further held, 'the only purpose of the interim order is to prevent in a deserving case the perpetuation of a wrong which the Court is likely to bring to an end on the termination of the proceedings, such a power, therefore, cannot be denied to the Court to interfere with the order with which it can interfere ultimately unless there be some reservation in the law itself." The same rule was followed recently by another Judge of Lahore High Court in the case ICI Pakistan Ltd. Lahore v. Punjab Labour Court HI, Ferozwala, Sheikhupura and another (1999 PLC 13).
8. In rebuttal to the arguments of Mr. Gulzar Ahmed, it was argued by the learned counsel for the respondents Nos,2 to 54 that a Court which is competent to pass final order is equally competent to pass interim orders in the same terms. It was further argued that the said respondents being employed on the job which is of a permanent nature, are entitled to the relief prayed for. He has vehemently argued that by virtue of subsection (6) of section 25-A and section 36 of the I.R.O,. 1969, the Labour Court is competent to grant interim as well as final relief. He has placed reliance on the following cases:--
(i) Punjab Seed Corporation and 2 others v. Punjab Labour Appellate Tribunal and 2 others (1996 SCMR 1947);
(ii) Karachi Pipe Mills Employees Union, Karachi v. Karachi Pipe Mills Ltd., Karachi (1992 PLC 143);
(iii) Karachi Pipe Mills Ltd. v. Sindh Labour Appellate Tribunal and 2 others (1984 PLC 1359);
(iv) Pakistan Herald Workers' Union v. Sindh Labour Appellate Tribunal and 3 others (1996 SCMR 1827);
(v) L.I.C.I./I.C.A Employees' Union v. Pakistan Insurance Corporation, Karachi and another (PLD 1975 Karachi 858);
(vi) Sindh Employees' Social Security Institution and another v. Adamjee Cotton Mills Ltd. (PLD 1975 Supreme Court 32);
(vii) Manager (Admit.) House Building Finance Corporation, Zonal Office, Multan v. Punjab Labour Court No,8, Bahawalpur and others (1995 PLC 44); (viii)Sindh Employees' Social Security Institution, etc. v. Adamjee Cotton Mills Ltd. (PLJ 1973 Karachi 259);
(ix) Ghulam Hussain and another v. Malik Shahbaz Khan and another (1985 SCMR 1925);
(x) Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another (PLD 1970 Supreme Court 139); and
(xi) M. Naseem Iqbal v. Dawood College of Engineering and Technology, Karachi etc. (1987 MLD 2580).
9.. Much time was consumed by both the sides in arguing for and against the proposition "Whether an individual grievance filed under section 25-A of the I.R.O., 1969, is an industrial dispute". It was argued at length that the provisions of section 36 of I.R.O., 1969 will be available to the Labour Court when it is adjudicating and determining an industrial dispute. Be that as it may, a Labour Court even while redressing an individual grievance as provided under section 25-A has been authorised to go into all the facts of the case and to pass order as may be just and proper in the circumstances of the case. Much water has flown under the bridge after the case of Brooke Bond (Pakistan) Ltd. (supra). The present trend of superior judiciary is to extend powers of the Courts and the Special Tribunals in order to adjudicate upon all the relevant issues and to do complete justice between the parties. One such instance is the case Chief Settlement Commissioner Lahore v. Raja Muhammad Fazil Khan and others (PLD 1975 SC 331 at 345) where power of review was conferred on the Court and Tribunal of special or limited jurisdiction to suo motu recall or review an order obtained from it by fraud, on the general principle that fraud vitiates the most solemn proceedings, For further reference see Messrs. Tawakkal Export Corporation and 5 others v. Muslim Commercial Bank and another (1997 CLC 1342).
10. Mr. Nishat Warsi has referred to a decision of a Single Bench of this Court in Pakistan Insurance Corporation (supra) where despite noting the decision of a Division Bench in the case of Brooke Bond (supra) and while referring to the Supreme Court decision in the case of Sindh Employees Social Security Institution and another v. Adamjee Cotton Mills Ltd. (PLD 1975 Supreme Court 32), it was held, inter alia, "If a Labour Court cannot keep a cause of action itself alive or permits a party to act in such a manner that the purpose of proceedings is defeated, certainly there would be nothing left to adjudicate upon. In such circumstances, an interim order to ensure due implementation of any final order, that may be passed, would appear to be necessary and incidental and it cannot be said that the Labour Court can have no power to pass such an order and in doing so it would be acting beyond its jurisdiction.' Mr. Gulzar Ahmed has argued that the rule laid down by the Supreme Court in the case of Adamjee Cotton Mills Ltd. (ibid) is not attracted in the case of Labour Court as the question before the Hon'ble Supreme Court in that case was in respect of a Social Security Court seizing of an appeal under section 59 of the Social Security Ordinance, 1965 where it was held that an appellate Court, pending appeal, has power to stay execution of order appealed against and that the grant of interim relief pending appeal is incidental and ancillary to main appellate jurisdiction.
11.In so far as I was able to lay my hands on the proposition under discussion, it was perhaps in the year 1970 when a similar question as of the instant case was considered by a Full Bench of Supreme Court in the case of Commissioner, Khairpur Division, Khairpur and another v. Ali Sher Sarki (PLD 1971 Supreme Court 242). In that case, the question was whether a Commissioner while acting under The West Pakistan Control of Ghoondas Ordinance, 1959, can suspend the operation of the impugned order without an express provision to that effect in the Ordinace. Reference by the Hon'ble Supreme Court to the case of Syed Sardar Shah Bokhari v. The Chief Justice and Judges of the High Court of West Pakistan (PLD 1965 SC 479) in which it was held that the power to direct interim suspension of the licence of an Advocate against whom an inquiry was pending is ancillary to the power of punishment after final adjudication and, therefore, the High Court should be deemed to have the inherent power to pass such an order in appropriate case. It was held in the case of Ali Sher Sarki that the Commissioner, being Appellate Authority was competent to pass ancillary order suspending the order of the Tribunal. Another Full Bench of Hon'ble Supreme Court of Pakistan in the matter of Government of Pakistan through, Ministry of Finance v. M.I. Cheema, Deputy Registrar, Federal Shariat Court and others (1992 SCMR 1852), inter alia, held as follows:-- "Adverting to the submission of Mr. A.R. Sheikh learned Senior - Advocate Supreme Court for the appellant that the learned Judge in chamber by granting the impugned interim relief, in fact granted the writ petition before its disposal, it may be observed that it is true that generally a Court cannot grant an interim relief which a party may be entitled to upon final adjudication of the case.
But in a fit case, the Court may grant an interim ralief of the above nature if dictates of justice so demand.... " (Emphasis Laid)
' In case, any further reference is needed, see Federation of Pakistan through Secretary, Finance, Islamabad v. Abdur Rehman and others (1995 SCMR 6). The Lahore High Court has also considered the above preposition of law in the case of Manager (Adorn) House Building Finance Corporation v.
Punjab Labour Court No, 8 Bahawalpur (1995 PLC 44) where reference was made to a decision of this Court in Messrs. Ahmed Food Industries Ltd. v. Sindh Labour Appellate Tribunal, Karachi and 2 others (1974 PLC 225). It was held, "moreover, grant of temporary injunction is a procedural law and not a substantive law like right of appeal or review. Since the Labour Court is fully empowered under the Ordinance to grant full and final relief to respondent No,2, therefore, it was also competent to grant ad interim relief to him under its inherent powers and also under provisions of section 36 of the Ordinance."
12. Recently, the Supreme Court of Pakistan in the case of Syed Imran Raza Zaidi, Superintendent Engineer Public Health Engineering Circle-I, Gujaranwala v. Government of Punjab and 2 others (1996 SCMR 645 at 652) (see also NLR 1994 Labour 123) has considered the question of granting interim relief by the Service Tribunal. Reference was made to section 5(2) of the Punjab Service Tribunals Act, 1973 which is similar to section 36 of the I.R.O., 1969. It was held that section 5(2) of the Service Tribunals Act, 1973 can be invoked by the Service Tribunal for the purpose of granting temporary injunction/interim relief pending final disposal of the appeal. The Supreme Court upheld the decision of the Punjab Service Tribunal through which order of transfer of one of the respondent in that appeal was suspended till the final disposal of the appeal by the Tribunal. Following is the relevant observation of the Hon'ble Supreme Court:- "Under subsection (2) of section 5, Service Tribunal is deemed to be a Civil Court having all the powers which are vested in. The Civil Court under C.P.C. Such Powers would include the jurisdiction of the Civil Court under Order XXXIX, rules 1 and 2, C.P.C. To grant temporary injunction and that of the appellate Court under Order 41, rule 5, C.P.C. To stay the execution/operation of the decree/order appealed from. These provisions can well be invoked by the Service Tribunal for the purpose of granting temporary injunction interim relief pending the final disposal of the appeal.
Apart from this, law is fairly well-settled that even in the absence of an express provision for the grant of interim relief, the appellate Court/Tribunal having the power to grant the main relief can also grant the interim relief by suspending wholly or partially, the operation of the order under appeal before it, as such a power is reasonably incidental or ancillary to the main appellate jurisdiction. Refer Sindh Employees' Social Security Institution and another v. Adamjee Cotton Mills Ltd. (PLD 1975 SC 32). Needless to observe that under section 5(1) afore referred, the Service Tribunal on an appeal filed before it can set aside, vary or modify the order appealed against, of course, after full and final hearing of the appeal. That being so, the tribunal can very well grant the interim relief during the pendency of the appeal on the basis of aforementioned principle. Thus, viewed from whatever angle, the Service Tribunal has the power to grant interim relief/temporary injunction during the pendency of the appeal." (Emphasis laid.)
13. As result of the above discussion, it could safely be held that a Labour Court which has been authorised to pass a final order in the nature of restoring the services of an applicant with all back benefits, is equally competent to pass an interim order in special and peculiar circumstances prohibiting the opponent from passing any illegal order and restraining an unauthoriesd act pending disposal of the matter before it. But, it should not pass such order as a routine matter. It should be an exception and only in those cases where all the three ingredients for grant of an interim injunction are made out, namely, existence of prima facie case, strong likelihood for suffering irreparable loss and injury, lastly, the question of balance of convience. Whenever such interim orders are passed, it would be incumbent upon the Court to proceed expeditiously with the matter and to dispose of the same as early as possible. This being the well-settled principle of law, in my view no irregularity or any illegality was committed by the learned Labour Court while passing an interim injunction order restraining the employers from terminating services of the applicants before . It is an admitted position that pending decision of the grievance petition before the. Labour Court, services of the few of the respondents were terminated. It may be the order of interim injunction which may have restrained the petitioners from dismissing or terminating the services of the remaining respondents. There would have been left nothing to adjudicate in case further termination/dismissal orders would have been passed. In such circumstances, the Labour Court was justified in preserving the cause of action alive. All the reasons required for grant of stay, thus, were available to the applicants (now respondents) entitling them interim prohibitory injunction. Even on merits of the case, no ground is shown for interference.
14. Accordingly, this petition is dismissed along with listed application with no order as to costs.
However, the concerned Labour Court is directed to conclude the proceedings within a period of 30 days from the date of receipt of intimation of this order.