JUDGMENT MUHAMMAD AKHTAR SHABBIR, J.- The petitioners had filed grievance petitions under Section 22- A(8)(g) of the Industrial Relations Ordinance, 1969 bearing Nos. 4A(236)/98 and 4A(237)/98 against the termination of their services vide order dated 25.7.1998 passed by the Pakistan Mineral Development Corporation (PMDC) which came-up for hearing before a Single Member of the National Industrial Relations Commissioner, Islamabad, who vide, order dated 25.7.1998 accepted the petitions and reinstated them to their services with all back benefits.
2. The facts giving rise to the writ petitions are to the effect that Muhammad Ibrahim, petitioner No. 1, had been appointed as L.D.C, on 13.8.1975 and promoted as U.D.C, on 1.10.1978 and Mumtaz Ali, petitioner No. 2, was appointed as UDC on 1.4.1979 and promoted as Accounts Assistant on 23.10.1993. According to the version of the respondent, these petitioners were active members of PMDC Workers Union CBA. There were two groups in the Union, one was headed by Ayub Khan and other was headed by Siddiqullah and the petitioners were the supporters of ' Siddiqullah group who lost the election of President. Therefore, the Ayub Group of the Union started victimizing the supporters of Siddiqullah group including the present , petitioners. Siddiqullah had been transferred from Badar Khel to Khewara and both the groups were pursuing the respondents for payment of ad hoc relief of Rs. 300/- to the workers but despite the fact that an agreement was executed by the management of PMDC with the C.B.A, on 10.2.1998, the aforesaid grant of ad hoc relief remained unsolved.
3. The grievance of the petitioners is that for the abovesaid reasons, the respondents had threatened them with dire consequences and as a result whereof, they had been terminated with effect from 25.7.1998 without observing the provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.
4. In the petition bearing No. 4-A(236)/98 filed by Mumtaz Ali petitioner, the respondent had filed an affidavit- in-evidence and met with cross-examination by Maqbool A. Mazari, Deputy Manager of the respondent, what> had also filed his affidavit in evidence and he too was cross-examined, In the petition bearing No. 4-A(237)/98 filed by the Muhammad Ibrahim, the respondent had filed his affidavit. He was cross- examined and the representative of the respondent Maqbool A. Mazari had also tiled his affidavit-in-evidence and he too met with cross-examination.
5. The petitions filed by both the petitioners were disposed of by a common order dated 1.5.1999 by the then Member Mr. Abdul Rashid Khan, who set aside the order of their termination and directed the respondent to reinstate the petitioners in service with immediate effect from the date of their termination.
6. The respondent had challenged the abovesaid order through the appeals before the Full Bench of National Industrial Relations Commission, Islamabad. The appeals filed by the respondent had been disposed of vide order dated 14.10.1999 and remanded back the case of both the petitioners to the learned Member to decide the petition afresh after affording them an opportunity to lead more evidence.
7. After remand, Mumtaz Ali petitioner had examined Amir Nawaz as his witness. The respondent produced Tariq Masood, Project Manger PMDC as a witness. Muhammad Ibrahim petitioner examined Niaz Badshah as his witness. The respondent filed the affidavit of Tariq Masood, Project Manager, but he was not cross-examined.
8. After hearing the learned counsel for the parties, the learned Single Member of the Commission through a common ' order dated 29.6.2000 accepted the petitions filed by the petitioners and set aside their termination order and directed the appellant/respondent to take them in service with all back benefit. This order has been challenged by the respondent before the Full Bench by filing two separate appeals baring Nos. 12(67)/2000 and 12(68)72000. The learned Full Bench of NIRC after hearing the learned counsel for the parties and considering the entire record and the evidence produced pro and contra, observed that the case of the petitioners did not cover within the meaning of unfair labour practice therefore, it would not be the forum of redressal of such grievance. The NIRC has categorically observed that it would have the jurisdiction to deal with a case where element of unfair labour practice as merges under Section 15 of the Industrial Relations Ordinance, 1969, was made out and the appeals were filed by the present petitioners only on general and vague allegations. Resultantly, both the appeals filed by the PMDC were accepted and set aside the order dated 29.6.2000 passed by the Single Member of the Commissioner vide its consolidated judgment dated 18.4.2001. The said order has been called in question through the instant writ petition.
9. I have heard the arguments of the learned counsel for the parties and perused the record with their assistance. Section 20-A(8) contemplates the functions of the National Industrial Relations Commission, which is reproduced as under:-
(a) To promote the formation of trade unions of worker within the same industry whether in establishment within a Province or in more than one Province and federations of such trade unions;
(b) to promote the formation of federations at the national level;
(c) to adjudicate and determine an industrial dispute to which an industry-were trade union or a federation of (such) trade unions is a party and which is not confined to matters of purely local nature and any other industrial dispute which is in the opinion of the (Federal Government) of national importance and is referred to it by that Government;
(d) to register industry-were trade unions, federations of such trade unions and federations as the national level;
(e) to determine the collective bargaining agents amongst industry-were trade union, federations of (such) trade unions and federations at the national level;
(f) to try offences punishable under--^
(i) section 53, other than sub-sections (1) and (5) thereof; and
(ii) any other section, insofar as they relate to employers or workers in relation to an Industry- were trade union, a federation of such trade unions, a federation at the national level or offices of such union or federation.
(g) 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-A 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;
(h) to advise Government, industry-were trade unions and federations in respect to the education of workers in the essentials of trade unionism including education in respect of their rights and obligations, and to secure the provision of facilities required therefor, and to apportion the cost thereof between the Provincial and (Federal Governments) industry- were trade unions, federations of such trade unions and federations at the national level, and the employers, in such manner as may be considered equitable by the Commission."
10. Sub-section (9) of the ibid Ordinance contemplate that the Commission may, on the application of a party, or of its on motion:-
(a) initiate prosecution, trial or proceedings or take action, with regard to any matter relating to its functions; and
(b) withdraw from a Labour Court any application proceedings on appeal relating to unfair labour practice). Sub-section (10) of Section 22-A of the aforesaid Ordinance further emerges that for the purpose of delaying with a case of unfair labour practice of which the Commission is seized, the Commission may-
(a) proceed directly with the case, or
(b) ask the Registrar within whose jurisdiction the case has occurred or is likely to occur to enquire into it and submit a report, or
(c) refer the case to Labour Court within whose jurisdiction the case has occurred or is likely to occur, either for report or for disposal."
11. From the bare reading of the above-referred provisions of the Ordinance, it is manifestly clear that National Industrial Relations Commission has exclusive jurisdiction to deal with the cases of unfair labour practices specified in Sections 15 and 16 of the said Ordinance on the part of the employers, workmen, trade union or either of them or person acting on behalf of them, whether committed individually or collectively.
12. The Industrial Relations Commission non-suited the writ petitioners observing that their case is not covered within the meaning of unfair labour practice as provided in Section 15 and 16 of the Ordinance. It would, mean that the National Industrial Relation Commissions lacks the jurisdiction to deal with the cases of the petitioners. Sub-section (9) of Section 22-A of the Ordinance has empowered the Commission that it on receipt of the application of a party or of its on motion to withdraw from a Labour Court any proceedings Or appeal relating to unfair labour practice.
Similarly, sub-section (10 has also conferred powers on the Commission to refer the case to Labour Court within whose jurisdiction the case has occurred or is likely to occur. If it was not triable by th National Industrial Relations Commission, it was incumbent upon the Commission to initiate prosecution, trial of Proceedings or take action with regard to any matter relating to its function and if the case is not covered within its power and jurisdiction, it was the legal obligation of the Commission to refer the case to the Labour Court concerned for adjudicating upon the matter. This argument is further strengthen from the dictum laid down in a case of Manager (Admn.) House Building Finance Corporation, Zonal Office, Multan v. Punjab Labour Court No. 8, Bahawalpur and others (1995 PLC 44) wherein National Industrial Relations Commission referred to the case to the Labour Court within whose jurisdiction the case has occurred. The order of the NIRC was challenged through a writ petition wherein it was objected that the' case could not be transferred to the Labour Court and the High Court dismissed the appeal maintaining the order of referring the case to the Labour Court concerned.
13. As referred in the preceding paragraphs, the NIRC could adjudicate upon the matter if the case of the writ petitioners falls within the provisions of Sections 15 and 16 of ' the Ordinance, but there was no evidence on record convincing the NIRC to adjudicate upon the matter and reinstate them to their service.
14. The word "jurisdiction" means power of a Court to hear and determine a cause to adjudicate or exercise any judicial power in relation to it and omission to raise objection, acquiescence, or even consent cannot invest a Court with jurisdiction, which it has not. It means that the Court or Tribunal would seize of the matter if it has the jurisdiction. The question of jurisdiction was to be decided by the Tribunal before proceedings further with the case and where the Court having no jurisdiction had proceeded with the matter, entire proceedings would be illegal and without jurisdiction, In this case, reference can be made to Ramdas v. Mst. Bermadat (P.L.D. 1998 Kar. 42). This argument is supported by the provisions of sub-section (10) of section 22- A of the Ordinance, wherein it has been provided that the Court would refer the case to Labour Court within whose jurisdiction the case has occurred or is likely to occur, either for report or for disposal, It is the primarily duty of the Court to determine its jurisdiction first and then to adjudicate upon the matter.
15. In the instant case, the Commission, after adjudicating and determining that the case is not triable by the NIRC, non-suited the petitioners and left no remedy for them. The Tribunal failed to perform its legal duty with regard to the objection of jurisdiction and the Court had to determine its jurisdiction first even if any party does not raise the objection With regard to the jurisdiction, It is settled proposition of law that no person/litigant can be prejudiced by the act of the Court and to destroy the rights of a litigant, as laid down in a case Riaz Ahmad v. Additional District Judge, Sargodha (1999 YLR 336), and Sherin and 4 others v. Fazal Muhammad and 4 others (1995 SCM R 584). In a case Amatullah Begum v. Munawar Akhtar, Advocate (1999 SCM R 1700), the Honorables Supreme Court has observed that the act of the Court not to be allowed to prejudice the right of the party.
16. In view of the above discussion, this writ petition is disposed of and while maintaining the impugned judgment, the case is remitted back with a direction to the N.I.R.C, for its further transmission/reference to the concerned Labour Court within whose jurisdiction the case has occurred. The Labour Court will decide the matter afresh within two months After providing full opportunity to the petitioners for production of their evidence. There is no order as to costs.