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 one Muhammad Javed Khan, Manager (Admn) Army Welfare Trust Nizampur Cement Plant (Head Office) AWT Plaza (6th Floor) The Mall, Rawlapindi Cantt. v. Messrs Shahid Tanveer, Imtiaz Gul, Amjad Ali, Muhammad Iqbal, Mashkoor Ahmad, Muhammad Naeem, Zain ul Abideen, Muhammad Shafique and Muhammad Ismaeel 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,4-A (350)/96 filed under section 22-A (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 observations "As discussed above, on minute examination of the pleadings of the parties and their respective versions, I find that the petitioner succeeded in providing 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 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.
2. It is alleged by the complainant that since employees of the petitioner's establishments 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 alleged 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. The complainant has also enclosed a Security Report which shows that a meeting under the leadership of the respondents was held for election of a trade union and for representating the grievances of the workers. A perusal of the said documents would also. Shows that the respondents are violating the aforesaid order dated 3-7-2002. It is prayed that the respondents/contemnors be summoned and punished for committing contempt of this Commission.
3. The instant petition/complaint was placed before me on 30-12-2002, 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 petitionhave resisted and vehemently opposed the petition/complaint by raising inter alia certain preliminary legal objections and it is strenuously contended
(I) this petition is not maintainable before the Commission as at one side the petitioner is objecting himself regarding the applicability of I.R.O. Whereas on the other hand he has brought this petition before this Commission which has been created under the I.R.O.. 1969;
(II) the petition has been filed with mala fide intention without mentioning any provision of law under which this petition has been moved;
(III) this Bench having once held that I.R.O., 1969 is not applicable, has no jurisdiction to entertain this petition, till the time the appeal filed before the Full Bench of the Commission is not decided and accepted and the Awami Labour Union, Nizampur Cement Plant is allowed to function in the petitioner's establishment;
(IV) the petitioner has even failed- to annex copy, of the order, contravention of which is alleged by the petitioner himself. As such the petition merits, dismissal having been filed against the law, rules and regulations:"
5. On merits the respondents while denying the allegations have submitted in their reply to the contempt petition that the complainant Muhammad Javed Khan is not 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. However, the respondents have submitted that an appeal against the order dated 3-7-2002, is pending before the Full Bench of this Commission. They have denied all the other allegations regarding acts of unfair labour practice and alleged that the petitioner's management have themselves committed the acts of unfair labour practice by harassing and coercing the members and office-bearers of the respondents union. It is further alleged that all the facts are baseless and concocted and the complainant/petitioner wants to damage the lawful trade union activities of the present office- bearers of the union, who have been recently elected in the election of the union against the wishes of the management and thus the management is alleging false and baseless allegations against the respondents and also against the office-bearers of the Federation so that they may not extend legal assistance to the respondents Union. 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 as the I.R.O., 1969 is not applicable to the employees of the petitioner's establishment.
It is prayed that this petition, be dismissed with cost.
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. Commission 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 previsions of I.R.O., 1969, thus this Bench has no jurisdiction to entertain the instant petition/complaint. He further contended that this petition has been filed with mala fide intention without mentioning any provision of law under which the instant petition has been filed.
On merits he also controverted the allegations and contended that the petitioner's management have themselves committed the acts of unfair labour practice by harassing and coercing the members/office-bearers of the respondents union to damage the lawful trade union activities of the present office-bearers of the union, who have been recently elected in the election of the union against the wishes of the petitioner management. He further contended that the respondents have never committed any contempt of this Commission as the I.R.O., 1969 of 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 costs.
7. Replying to the assertion of 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. Therefore, 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. He further C contended that the petitioner's establishment has 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. Replying the next objection of the representative of the respondents that no provisions of law have been stated in the petition does not hold good as section 51 of I.R.O., 2002 has been mentioned and stated in the petition, even otherwise it is not necessary to state the section of law in an application. As regard 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 3-72002 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. As regard the objection that copy of the order dated 3-7-2002 has not been attached with the petition, he contended that this objection has been raised without seeing the record as copy of the said order has been attached with the petition and placed at pages 23 to 58 of the file.
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 version, 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 I.R.O., 1969 and accordingly 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. 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 of 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 E alleged disobedience and violation of the order dated 3-7-2002 thus the said 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-matter of this petition therefore, the same can be examined and determined only after recording evidence of the parties, I would, therefore like to record evidence of both the parties. Let the case come up on 29-4-2003 for evidence of the complainant and for further proceedings.