' This order shall dispose of the preliminary legal objections raised by the respondents regarding maintainability of the instant petition/complaint filed under section 51 of I.R.O., 2002 by Army Welfare Trust Nizampur Cement Plant through Mr. Muhammad Javed Khan, Manager (Admn.)
Head Office, AWT Plaza (6th Floor), The Mall Rawalpindi Cantt v. Messrs Shahid Tanveer, Imtiaz Gul, Amjad Ali, Muhammad Iqbal Mashkoor Ahmad, Muhammad Shafique, Zahoor Anjum, Misri Khan, Amjad and Zameer Khan for initiating contempt proceedings against the above mentioned respondents for violating and disobeying the judgment/order dated 3-7-2002 passed by this Bench in petition No,4A (350)/96 filed under section 22A(8)(g) of the I.R.O., 1969 by the Army Welfare Trust Cement Plant Nizampur, whereby the said petition was allowed with the following observation: "As discussed above, on minute examination of the pleadings of the parties and their respective versions, I find that the petitioner succeeded in proving that the petitioner's establishment namely AWT Cement Plant Nizampur, manufacturing/supplying special cement to the Armed Forces for the defence projects and this aspect of the purposes of the petitioner establishment clearly makes it out to be an organization connected with and incidental to the Armed Forces and hence covered by exemption prescribed in section 1(3)(a) of I.R.O., 1969. I, therefore have no hesitation in holding that the persons employed in or working for the petitioner's establishment which is an installation connected with and incidental to the Armed Forces of Pakistan are covered by the exemption prescribed under section 1(3)(a) of I.R.O., 1969 and accordingly the employees of the petitioner establishment are excluded from the application of I.R.O., 1969. Thus the act of forming and registration of Awami Labour Union Army Welfare Trust Cement Plant Nizampur is against the law and violative of I.R.O., 1969."
' It is alleged by the complainant that since employees of the petitioner's establishment are excluded from the application of the I.R.O., 1969, thus the act of forming and registration of Awami Labour Union Army. Welfare Trust Nizampur Cement Plant is against the law and violative of the provisions of I.R.O., 1969. It is further submitted that in the said order, it was also directed that the respondents/employees shall not involve in the formation of any trade union in the petitioner's establishment and they were permanently restrained from committing any act of unfair labour practice. The Registrar of Trade Unions, Peshawar Region N.-W.F.P. Was also restrained from issuing registration certificate to the aforesaid union. It is next submitted that an appeal against the aforesaid order dated 3-7-2002 is pending adjudication before the Full Bench but no stay-order as such has been issued by the Full Bench. It is further contended that the present complainant/petitioner had also filed a Contempt Petition (No,7(15)/2002) under section 51 of I.R.O., 2002 against the respondents Nos.1 to 6 and three others which is pending disposal before this Bench. It is further alleged that on 26th March, 2003 at about 0855 hours Messrs Imtiaz Gul, Shahid Tanveer alongwith 8 to 10 workers of the Plant entered the Admn. Block and forcefully pulled out the staff from the offices and rushed on General Manager (Works). They assaulted him. Imtiaz Gul (respondent No,2) was equipped with rope and attempted to put the same around his neck with the intention to kill him, but intervened by the officers present there namely Col., (Retd) Bashir (Senior Manager Admn.), Deputy Manager (Security) Junior Officer (Admn.) and three to four F.0 Personnel. It is further alleged that the said persons have also assaulted, abused and beaten Maj.
(Retd) Naeem (Deputy Manager Security). Mirza Masood (Manager Finance), Col. (Retd.) Bashir (Senior Manager Admn.), Shahib Jamal (Junior Officer Admn.) and Maj. (Retd.) Shafi-ur-Rehman and broken power-glasses of Shahib Jamal, (Junior Officer Admn.) and also forcefully stopped the functioning of Admn Block and TeldphoneExchange by pushing the staff of the Exchange Room.
The said persons also harassed the Gunman and Chinese Engineers. However, on the interaction of S.H.O. Police Station Niazampur, the workers moved to the main gate alongwith the staff of Admn.
Block. Consequently, the production alongwith despatch remained suspended resulting into colossal financial losses of factory and the Government. It is further submitted that the complainant/petitioner establishment has already lodged F.I.R. With the concerned Police Station. It is further contended that the respondents have also threatened to abduct/kidnap the officers of the Plant in order to continue with their unlawful design and cause colossal loss to the unit. It is prayed that the respondents/contemners be summoned and punished for committing contempt of this Commission.
3. The instant petition/complaint was placed before me on 1-4-2003 when after hearing the learned counsel for the petitioner/complainant a notice was issued to the respondents to file their parawise comments on the aforesaid contempt petition.
4. The respondents while filing their reply to the contempt petition have resisted and vehemently opposed the petition/complaint by raising inter alia certain preliminary legal objections and it is strenuously contended that:
(i) the provisions of section 51 of I.R.O. Are not attracted in the present case. None of the respondents was a party/respondent in Case No,4A(350)/96. No order can be passed on the back of person without hearing him;
(ii) even otherwise the provisions of section 51 of I.R.O. Are not attracted on account of the order of this Bench in Case No,4A(350)/96 wherein it was held that I.R.O. Is not applicable to Nizampur Cement Plant;
(iii) this Bench being the creation of I.R.O. Thus after giving the finding that the employees of.
Nizampur Cement Plant are excluded from the application of I.R.O. Has no jurisdiction to entertain this petition;
(iv) the power of review is not conferred on this Bench as the entertaining of this petition would amount to reviewing the order dated 3-7-2002" and this Bench has no jurisdiction to review its orders. The said order is under appeal filed by Zain ul Abideen but no order has been passed.
Awami Labour Union has filed an application for being joined a party through respondents Nos.1 and 4 but no order about joining it as party has so far been passed.
(v) Order dated 3-7-2003 is in the field until it is set aside by the Full Bench of the Commission. As such this Bench has no legal power to entertain this petition.
5. On merits the respondents while denying the allegations have submitted in their reply to the contempt petition that neither the complaint/petition is maintainable nor the complainant Muhammad Javed Khan is competent to file this petition, as vide order dated 3-7-2002 this Bench has decided that employees of the petitioner's establishment have been excluded from the application of I.R.O., 1969 and thus on this very ground this Bench has no jurisdiction to entertain this petition, accordingly no such contempt petition against the respondents, can be filed before this Commission as they were not party in Case No,4A(350)/96. However, the respondents have submitted that an appeal against the order dated 3-7-2003 is pending before the Full Bench of this Commission. While denying the other allegations the respondents have submitted that all the allegations are bogus and baseless and the instant complaint has been filed only to harass and coerce the respondents and a false and bogus F.I.R. Was lodged against the respondents on 26-3- 2003 and, that allegations are being alleged only to victimize the respondents. It is contended that the allegations of the complainant/petitioner are false and baseless as the order dated 3-7-2002 has not been violated. It is also contended that the respondents have never committed any contempt of this Commission. It is prayed that this petition be dismissed with costs.
6. I have heard arguments of the learned counsel for the petitioner/complainant and the representative of the respondents on the preliminary legal objections raised by the respondents regarding maintainability of the petition and jurisdiction of this Commissions as well as the other objections. Representative of the respondents has taken the plea that in terms of the order dated 3-7-2002 passed by this Bench, the employees of the petitioner/cOmplainant's establishment are excluded from the provisions of I.R.O., 1969, thus this Bench has no jurisdiction to entertain the instant petition/complaint. On merits he also controverted the allegations and contended that the petitioner's management have themselves committed the acts o' unfair labour practice by harassing and coercing .The respondents. He further contended] that the respondents" have never committed any contempt of this Commission as the I.R.O., 169/2002 is not applicable to the employees of the petitioner's establishment. He further contended that an appeal against the order dated 3-7-2002 is also pending decision before the Full Bench, thus the instant petition/complaint is not maintainable and the same is liable to be dismissed with cost.
7. Replying to the assertion the representative of the respondents, learned counsel for the petitioner/complainant has strenuously contended that contention of the representative of the respondents is incorrect and without any' substance. He contended that vide order dated 3-7-2002 passed by this Bench, it was held that the petitioner's establishment being connected with and incidental to the Armed. Forces of Pakistan are covered by the exemption prescribed in section 1(3)
(a) of the. I.R.O., 1969 and thus the persons employed in or working for the petitioner's establishment are excluded from the application of the I.R.O., 1969. He further contended that the petitioner's establishment had challenged the applicability of I.R.O., 1969 to its employees and not the functions or powers of this Commission, so the Commission has the jurisdiction to entertain the instant petition and it is for the Commission alone to-initiate contempt proceedings against the respondents for violating and disobeying its orders. Regarding initiation of the contempt proceedings by a Court he contended that it is well-settled principle of law that the Court means a 'Court' which passed the order and which order is allegedly being disobeyed and violated. Thus only that Court which passed the order would have the jurisdiction to take cognizance of disobedience and contempt of the said order. In support of his contention he referred the provisions of section 51 (a) of I.R.O., 2002, and contended that the present petition for contempt of Court is based on the allegations of disobedience and violation of order/ judgment dated 3-7- 2002, therefore, the same is competent and maintainable before this Bench. As regards the other objection raised by the respondents, he contended that admittedly an appeal filed by the respondents against the order dated 3-7-2002 passed by this Bench is pending decision before the Full Bench, but since there is no stay order, therefore, the order dated 3-7-2002 is in the field and has to be obeyed. Regarding the next objection that the instant petition has been filed with mala fide intentions, he contended that it is a mere conjecture as there is no material on record to this effect. In support of his contention he referred to order dated 18-2-2003 passed by this Bench in Case No,7(15)/2002 and contended that in view of the aforesaid orders, the instant contempt is maintainable and the objections raised by the respondents are liable to be rejected.
8. I have given my anxious consideration to the submissions made by the learned counsel for the petitioner/complainant and the representative of the respondents. On minute examination of the pleadings of the parties and their respective versions, I find that the admitted fact is that vide order dated 3-7-2002 passed by this Bench it was held that the persons employed in or working for the petitioner's establishment which is an institution connected with and incidental to the Armed Forces of Pakistan are covered by the exemption prescribed under section 1(3) (a) of I.R.O., 1969, thus they are excluded from the application of the I.R.O.
1969. In order to better appreciate and examine the aforesaid contention of the parties regarding competency of the instant petition/complaint, it would be useful to reproduce below the provisions of section 51 of I.R.O., 2002:- "51. Additional powers of the Commission. In addition to the powers which the Commission has under section 50.
(a) the Commission shall have powers to punish any person who obstructs or abuses its process or disobeys any of its order or directions or does anything which tends to prejudice the case of a party before it, or tends to bring it or any of its members in relation to proceedings of the Commission into hatred or contempt, or does anything which by law, constitutes contempt of Court, with fine which may extend to forty thousand rupees; and...."
' Keeping in view the aforesaid provisions of section 51(a) of I.R.O., 2002, I have no hesitation in holding that since the present petition is based on the alleged disobedience and violation of the order dated 3-7-2002 thus petition is competent and maintainable before this Bench.
9. Upshot of the above discussion is that I find no merit in the preliminary objections raised by the respondents to the competency of the petition, which are hereby rejected and it is held that the instant petition is maintainable under section 51(a) of the I.R.O., 2002. It may be submitted that since there are mixed questions of law and facts involved in the subject-mater of this petition therefore the same can be examined and determined only after recording evidence of tine parties, I would, therefore, like to record evidence of both the parties. Let the case come on 3-9-2003 for evidence of the complainant and for further proceedings.