' By this Single Order, I propose to dispose of the above titled four complaints. All the above titled complaints were filed on 4-10-2001 by individual complainants separately against the respondents i,e, Usmana Javaid, Operations Manager, Sajad Malik Regional Sales Manager, Athar Niaz Distribution Manager and Zahida Anwar, Sales Manager of Northern Bottlers (Pvt) Limited, Islamabad (hereinafter called the company) under Sections 8-A and 15 read with section 53(1) and (1-A) and section 22-A(8)(g) of the I.R.O., 1969. A common allegation in all the aforesaid complaints is that the complainats alongwith others workers formed a trade union namely of Northern Bottlers Employees Union Islamabad on 2-9-2001 and the complainants were selected as office-bearers i,e, President, General Secretary, Finance Secretary and Member Executive Council of the union to organise trade union activities. On 11-9-2001 an application for registration of the said union was submitted to Registrar Trade Unions Islamabad and the complainant vide letter dated 12-9-2001 informed all the officers of the respondent-Company about formation of the union and names of the elected office-bearers including the complainants. It is further alleged that a news item regarding formation of the union an delection of the office-bearers was also published in Urdu "Daily Ausaf" on 18-9-2001.
2. It is next alleged that the respondents started pressurising the complainants to resign from the union. They were also threatened of dire consequences, if they did not dissolve the union and the respondents started to take signatures of the complainants on gun-point on white papers and also on some written documents. It is further alleged that on 21-9-2001 and again on 22-9-2001 the respondents alongwith their armed "Ghundas" and other officers, stopped the complainants alongwith some other members of the union at the gate of the Factory and did not allow them to enter into the premises to perform their duties. The complainants and other workers were told that if they resign from the union and dissolve it, then they could enter the Factory. But since the complainants did not agree to this suggestion, therefore, they imposed an illegal lock-out upon the complainants and other workmen of the company. It is contended that the said action on the part of the respondents come within the mischief of section 8-A read with section 15 of the I.R.O., 1969 as the said action was taken without permission of the Registrar of Trade Unions, Islamabad. The complainants have made the following prayer in their complaints:- "This Hon'able Commission is, therefore, most respectfully prayed that respondents be punished as provided by sections 53(1) and 53(1-A) read with section 22-A(8)(g) of the I.R.O., 1969 and order may kindly be passed for resuming the duties by complainants or any other relief which the Hon'able Commission may deem it."
3. These complaints were placed before me on 6-10-2001. Representative of the complainants while arguing his case has submitted that since the complainants have informed the respondents about formation of trade union and also communicated the names of the office-bearers of the union including the complainants, therefore, the action taken by the respondents in violation of section 8-A of the I.R.O., 1969 constitute an act of unfair labour practice. After hearing representative of the complainants pre-admission notices were issued to the respondents for filing parawise comments on the main petition counter-affidavit on 31-10-2001 as the complainants have also moved their complaints under section 22-A(8)(g) of the I.R.O., 1969 which is also clear from the prayer made in the complaints.
4. On 10-10-2001 the respondents moved applications for early hearing of the aforesaid complaints through Applications Nos.7A(84) of 2001, 7A(85) of 2001, 7A(86) of 2001 and 7A(87) of 2001 and also applications for summary rejection/dismissal of the complaints vide Applications No,7A(80) of 2001, 7A(81) of 2001 7A(82)/2001 and 7A(83) of 2001 which have been made part of these complaints. After hearing the learned counsel for the respondents Mr. S. Naeem Bokhari, Advocate, notices were issued to the complainants for 25-10-2001. On 25-10-2001 applications for early hearing were disposed of and all the complaints alongwith applications for summary dismissal of these complaints were adjourned with the consent of the parties for arguments on 26-1-2001 and then to 1-11-2001.
5. In their applications for summary rejection/dismissal of the complaints, the respondents have contended that the averments made in the complaints, the conclusion of the Labour Department vide their letter dated 26-9-2001, telegrams dated 20-9-2001 and 21-9-2001 and letters dated 22- 9-2001 sent by the complainants to the Registrar of Trade Unions, Islamabad annexed with the complaints, clearly denotes and establish that the matter falls beyond the pale of jurisdiction of this Commission. It is further contended that Farooq Hashmi and Qamar Shehzad complainants in case No,4(6) of 2001 and. Case No,4(8) of 2001 had earlier filed complaints No,7A(76)/2001 and 4(4)/2001 on 27-9-2001 and 26-9-2001 respectively, having the same cause of action but the same were withdrawn unconditionally on 29-9-2001, therefore, the present two complaints i,e, 4(6) of 2001 and 4(8) of 2001 are clearly- barred by law and an abuse of the process of this Commission.
6. I have heard learned counsel for both the parties. Learned counsel for the respondents Mr. S. Naeem Bokhari has mainly dwelt regarding jurisdiction of the Commission in entertaining the instant complaints. He contended that complainants have admitted themselves that during pendency of application for registration of their union, their services were terminated in violation of section 8-A of I.R.O., 1969, which'is an offence punishable under section 53(1) of I.R.O. 1969 and this contention even if proved is not an unfair labour practice. He read out the complaints and pointed out that in para. 1, the complainants have submitted that they alongwith other workers have formed a trade union on 2-9-2001 and they were elected as office-bearers of the said union i,e, President, General Secretary, Finance Secretary and Member Executive Committee and thereafter on 11-9-2001 an application for registration of the said union was submitted to the Registrar of Trade Unions, Islamabad. It is further submitted that the names of the officers of the union including the complainants were sent to the management of the company and a news item to this effect had also appeared in the national press but the complainants were not allowed by the respondents to enter the office on 21-9-2001 and again on 22-9-2001. This act on the part of the respondents occurred during pendency of the application for registration of the union before the Registrar of Trade Unions, Islamabad.
7. Learned counsel for the respondents has contended that the amendment in section 8-A was inserted with a view to protect the office-bearers of the union or workers against any victimization during pendency of application for registration of the union. The complainants themselves admit that they had moved an application for registration of the union before the Registrar of Trade Unions, Islamabad and their services were terminated without permission of Registrar of Trade Unions. Learned counsel pointed out that even if it is proved that the services of the complainants were terminated in violation of section 8-A of I.R.O., 1969, this contravention is not an act of unfair labour practice. He further submitted that a bare reading of section 15 support his arguments that contravention of section 8-A is not an unfair labour practice but constitute an independent offence punishable under section 53(1) of I.R.O., 1969, section 8-A and section 53(1) of I.R.O., 1969 read as follows:-- 8-A. "Save with the prior permission of the Registrar no officer of a trade union or workmen shall be transferred, discharged, dismissed or otherwise punished during the pendency of an application for registration of the trade union with the Registrar provide that the union has notified the names of the officers to the employer in writing."
53(1) "Whoever contravenes the provisions of section 8-A shall be punishable with imprisonment which may extend to three years, or with fine which may extend to two thousand rupees or with both".
53(1-A) "Whoever contravenes the provision of section 15 shall be punishable with imprisonment which may extend to (four years) or with fine which may extend to (ten) thousand rupees or with both."
Learned counsel for the respondents has further contended that in terms of the aforesaid provisions, when during pendency of an application for registration of a trade union, services of an office-bearer of a union or a workman is terminated without permission of Registrar of Trade Unions, in violation of section 8-A of I.R.O., 1969, the contravention shall be punishable under section 53(1) of I.R.O., 1969, and therefore, only the Labour Court has the jurisdiction to entertain and try such cases as jurisdiction of N.I.R.C. To try such offences has been specifically excluded under section 22-A(8)(f)(1) of I.R.O., 1969. Therefore, the instant complaints cannot be tried by the Commission. Section 22-A(8)(f) reads as follows:-- "to try offences ** punishable as under---
(i) section 53, other than subsections (1) and (5) thereof and
(ii) any other sections, insofar as they relate to employers or workers in relation to an industrywise trade union, a federation of such trade unions, a federation at the national level or officers of such union or federation."
8. Learned counsel for the respondents has further contended that the complaints also contains the prayer that the complainants be reinstated in service but without any definite prayer that they may be reinstated in service after passing a sentence against the respondents. In the present case the complainants have not requested that they may be reinstated after passing the sentence. In other words, the complainants are seeking their remedy under section 22-A(8)(g) of I.R.O., 1969 and not under Regulation 32(1) of N.I.R.C. (P&F) Regulations, 1973. The complaints are also bad in law because they are seeking criminal as well as civil remedy simultaneously.
9. Learned counsel for the respondents has also drawn my attention to section 22-A(8)(f) of I.R.O., 1969 and urged that N.I.R.C. Had the jurisdiction to try offences punishable under section 53, other than subsections (1) and (5) thereof and there is no dispute that union of the complainants (whose application for registration was pending) is a local union and not an industrywise trade union. He further contended that neither gist of evidence nor names of witnesses had been given and that insofar as Farooq Ahmed Hashmi and Qamar Shahzad are concerned. Similar complaints having been withdrawn unconditionally and the subsequent complaint was barred and an abuse of the law and process of this Commission.
10. Learned counsel for the complainants Ch. Sadiq Muhammad Warraich has argued that applications for summary dismissal of the complaints are not supported by any provision of law, and he is prepared to withdraw the entire averments made in the complaints as to violation of section 8-A, trial of which under section 53(1) of I.R.O., 1969, is beyond the pale of jurisdiction of this Commission. He further contended that in addition to violation of section 8-A, there were averments which constitute unfair labour practice and therefore, the complaints should not be dismissed/rejected merely because they contained material or references to such sections, provisions of which are beyond or outside the jurisdiction of this Commission. He also submitted that a second complaint was not barred unless in the first complaint a person had been tried and convicted. He referred to 1987 SCM R 638, 1972 SCM R 91 and 1973 PLC 370. Lastly he argued that reference to a wrong section or misdescription of law is immaterial and the Court must take all material on record into account.
11. After hearing arguments of both the parties, I have come to the conclusion that the following three issues emerge regarding jurisdiction of the Commission and maintainability of the complaints:--
(i) Can the Commission entertain a complaint if it is moved under section 22-A (8)(f)(1) read with section 22-A(8)(g) of I.R.O., 1969?
(ii) Whether violation of section 8-A is an act of unfair labour practice as defined under section 15 of the I.R.O., 1969?
(iii) Whether violation of section 8-A in respect of a union registered with the Provincial or Local Registrar of Trade Unions, can be tried under section 53(1) of I.R.O., 1969, by the Commission?
(a) As regards the issue raised at Serial No,1, I am of the firm view that criminal as well as civil remedy cannot simultaneously be sought through single proceedings. A perusel of the prayer as reproduced at para. 2 above would show that section 22-A (8)(g) of I.R.O., 1969 has also been mentioned and the words after conviction of the respondents' are conspicuously absent. The complainants have sought simultaneously not only a criminal remedy but also a civil remedy which they cannot sought through a single proceedings. In this regard the Provision added under Regulation 32(2)(1) of the N.I.R.0 (Procedure and Functions) Regulations, 1973 are crystal clear which read as follows:-- ' Provided that the Commission while awarding punishment under section 53 may also direct the reinstatement of a worker and allow consequential benefits to him' ."
' In view of the above, I hold, that this Commission has no jurisdiction to take cognizance of the instant complaints and accordingly the same are not maintainable..
(b) As regards interpretation of the issue at Serial No,II whether violation under section 8-A can be equated with the term "unfair labour practice" as defined under section 15 of the I.R.O., 1969 I would like to refer to the headings of section 8-A and section 15 which read as follows:-- ' Section 8-A. "Transfer etc. Of officers of trade union during pendency of application for registration."
' Section 15. "Unfair labour practice on the part of the employers."
' A bare reading of section 8-A would clearly show that no officer of trade E union can be transferred, discharged, dismissed or otherwise punished during the pendency of an application for registration of the union with Registrar, even if such transfer, discharge or dismissal is justified under the law. Contravention of section 8-A is an offence which is punishable under section' 53(1) of the Ordinance. While on the other hand if a worker is dismissed, discharged or removed from employment or threatened in respect of his employment by reason that he is a member or officer of a trade union or participating in promotion, formation or activities of a trade union, in contravention of section 15 of I.R.O., 1969, the offence shall be punishable under section 53(1) of I.R.O., 1969. It may be submitted that section 8-A has been inserted by the law framers vide Industrial Relations (Amendment) Act, 1973 to cover those cases which are not covered under section 15 of the Ordinance. It may also be noticed that contravention of section 8-A in respect of local trade unions cannot be tried by the Commission as laid down under section 22-A (8)01) of the I.R.O., 1969, while an act of unfair labour practice as envisaged under section 15 of the Ordinance if committed by an employer against a union registered with the Provincial/Local Registrar of Trade Unions, can be tried by the Commission is well by the Labour Court as both the forums have the concurrent jurisdiction. Needless to add that the punishment provided under Section 53(1) is different from that provided under section 53(1-A) which are the penal sections for contravention of Section 8-A and section 15 respectively. I, therefore, hold that violation of section 8-A is not an act of unfair labour practice as defined under section 15 of the Ordinance.
12. As regards jurisdiction of the Commission to try offences in respect of violation of section 8-A in the case of locally registered trade unions I would like to mention that section 22-A(8)(fl(1) of the Ordinance lays down that it is the function of the Commission to try offences punishable under section 53 other than subsections (1) and (5) thereof. Subsection (1) of section 53 lays down that ' whoever contravenes the provisions of section 8-A shall be punishable with imprisonment which may extend to three years, or with fine which may extend to two thousand rupees or with both' and therefore, under section 64 of the Ordinance, the Labour Court has the jurisdiction to try such cases in respect of locally formed union. However, section 22-A (8)(0(h) lays down that the Commission has got the powers to try the offences punishable under any other section insofar as they relate to employers or workers in relation to an industry wise trade union, a federation of trade unions, a federation at the national level or officers of such unions or federation. I, therefore, hold that since in the instance cases the complainants do not belong to an industry wise trade union, therefore, the Commission has no jurisdiction to try the offence relating to the violation of section 8-A of the Ordinance, s laid down under section 22-A (8)(0(i) of I.R.O., 1969. The judgment cited by the learned counsel for the complainants are not relevant to the facts of the present cases. Further issue of lack of jurisdiction can even be pointed out orally at any stage.
13. As discussed above, on minute examination of the pleadings of the parties and their respective versions, I find force in the objection raised on behalf of the respondents to the maintainability of the present complaints. It is an admitted position that services of the complainants were terminated during pendency of application for registration of their union without permission of the Registrar Trade Unions Islamabad in violation of section 8-A of I.R.O., 1969, which contravention is punishable under section 53(1) of I.R.O., 1969, therefore, only the Labour Court has the jurisdiction to entertain and try such cases as laid down under section 53 of I.R.O., 196 s jurisdiction of this Commission has been specifically excluded as envisaged under section 22-A(8)(f) of I.R.O., 1969. In the circumstances, learned counsel for the complainants is not quite right in contending that the complaints are maintainable and this Commission has the jurisdiction to take cognizance of the complaints. I am of the condid view and considered opinion fortified by express provisions of section 8-A read with section 53(1) and section 22-A(8)(f)(1) of I.R.O., that this Commission has no jurisdiction to entertain the above titled complaints and to take cognizance of the cases. The complainants were not properly advised to have their luck before the proper forum i,e, Labour Courts, if they had some legitimate grievances.
' Upshot of the above discussions is that in view of the provision of section 22-A(8)(f)(1) of I.R.O., 1969, this Commission has no jurisdiction to take cognizance of the instant complaints, and therefore, in terms of section 201(1) of Criminal Procedure Code 1898 all the above titled complaints are returned to the complainants for presentation to the proper Court, if they so desire.