NATIONAL PERTOCARBON (PVT.) LTD. Versus REGISTRAR OF TRADE UNIONS

ORDER

This is an application under section 151, C.P.C. by the plaintiff praying for interim stay of further proceedings in complaint No.2/68 pending before defendant No.2.

2. Plaintiff's case is that plaintiff No.l is a limited company while plaintiffs Nos. 2 and 3 are its executives. Defendants Nos. 5, 6 and 7 were also its officers but have been retired from the service. There are less than 50 workers employed in a shift in the plaintiff‑company. Defendant No.4 is Collective Bargaining Agent of plaintiff No.l. He had moved Provincial Government for appointment of auditor under section 23‑B of Industrial Relations Ordinance XXIII of 1969.

Defendant No‑3 i.e. Government of Sind issued a Notification on 15‑2‑1983 appointing the Auditor holding out that there were more than 50 workers in a shift. Plaintiff No.l made representation to defendant No.3 and sought withdrawal of Notification as the condition precedent was that there should be more than 50 workers in a shift which was not there but the representation was turned down. Mir Muhammad Baloch Assistant Director Labour filed a complaint before Labour Court that the plaintiffs have not complied with the instructions of defendant No.3 for auditing of their accounts and therefore committed an offence under section 23‑F of Industrial Relations Ordinance, 1969 which was brought on record and process was issued against the plaintiffs and defendants Nos. 5, 6 and 7. The plaintiff filed an.application under section 249‑A, Cr.P.C. for disposal of the complaint but the application was dismissed. Hence this suit where m the above application for interim stay is made.

3. Mr. K.M. Nadeem who appeared for the defendants Nos.1 to 3 has opposed this application vehemently. He has contended that the relief of permanent injunction has not been sought in the plaint, hence no interim injunction can be granted to the plaintiff. This proposition of law is well settled that ordinarily an interim injunction can be granted only when there is a prayer for permanent injunction in the plaint.

4. In the case of Marghub Siddiqui v. Hamid Ahmed Khan reported in 1974 SCMR 519 it was held as follows:‑

"Apart from the question that in the present case the trial Court had exceeded its jurisdiction by deciding the question of the validity of the resolution finally it appears to us that the present petition must fail, for, the ad interim injunction could not have been granted for two other very good reasons which have unfortunately not been noticed by the Courts below.

The first is that in a suit where no perpetual injunction is claimed no question of granting adinterim injunction can possibly arise. In the present case, the application for ad interim injunction should have failed on this ground alone:"

5. The second contention of Mr. K.M. Nadeem was that section 56(i) of the Specific Relief Act prohibited the grant of an injunction when equally efficacious relief can certainly be obtained by other usual mode of proceedings except in case of breach of trust. With this proposition of law also there can be no dispute. In the case of Municipal Committee, Montgomery v. Sant Singh reported in AIR 1940 Lahore 377 where the Municipal Committee had imposed tax on a person on whom it could not be imposed under the Punjab Municipal Act. It had thus committed breach of an obligation impliedly existing in his favour and the person aggrieved could relieve himself from harassment by invoking the mode of relief provided under section 54 of the Punjab Municipal Act. It was observed by the High Court that in such a case there was another usual mode of proceedings available to the plaintiff which would be considered equally efficacious.

6. Mr. K.M. Nadeem then invited my attention to the entire scheme of the Industrial Relations Ordinance 1969 in this behalf. Section 23‑F of Industrial Relations Ordinance prescribes penalty for contravention of section 23‑B or 23‑D etc. in the following words:‑

"23F. Penalty for contravening section 23‑B or 23‑C , etc.‑ ‑(1) Whoever contravenes the provisions of section 23‑B or section 23‑C shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to two thousand rupees, or with both.

(2) No Court shall take cognizance of any offence punishable under subsection (1) except upon a complaint in writing made by the Registrar."

7. He then referred to section 35 of Industrial Relations Ordinance 1969 which creates machinery for trial of such offence by creating Labour Courts. Section 30(1) provides the procedure while subsection (2) thereof provides that such a Court shall be a civil as well as a criminal Court. Section 38(l) of I.R.O. provides for appeals to the Labour Appellate Tribunal while subsection (3)(a) of section 38 provides for revisional jurisdiction and subsection(6) of Section 38 provides for appeal against conviction and sentence of more than Rs.50 to the High Court. The High Court also has the jurisdiction to quash the proceedings under section 561‑A Cr.P.C. He therefore submitted that when there was a statute creating rights and duties as well as offence and also providing machinery for their enforcement and punishment resort must be had to procedure prescribed in a statute creating rights and the offence and providing for the enforcement and punishment thereof and jurisdiction of a civil Court was barred in such matter. In this connection he has relied upon the case of Mushtaque Hussain v. Riaz Muhammad Hazarvi reported in PLD 1978 Kar. 612, where it was held by Z.A. Channa, J., as follows:‑

"10. It will be seen that the principle that where a statute creates a right and also provides machinery for the enforcement of that right, then according to the Karachi authority referred to above, resort is to be had to the procedure prescribed in the statute creating the right for its enforcement and the jurisdiction of the general civil Courts is barred. This is an old principle which has received recognition in England since ancient times. In Dco d. Bishop of Rochester v. Bridges (1831) 1 B & Ad. 847 it was observed:‑

"Where an Act creates an obligation and enforces the performance in a specific manner, we take it to be a general rule that performance cannot be enforced in any other manner."

In Stevens v. Jeacocke (1848) 11 QBD 731 it was said:‑‑

"It is a rule of law that an action will not lie for the infringement of a right created by statute, where another specific remedy for infringement is provided by the same statute."

In Queen v. The County Court, Judge of Essex (l&g7) 18 QBD 704 (707) Lord Esher, M.R. said:‑‑

"The ordinary rule of construction applies to this case, that where the Legislature has passed a new statute giving a new remedy, that remedy is the only one which can be pursued."

In Barraclough v. Brown 1897 AC 615 (622) the question raised before the House of Lords was whether an action for a declaration of a right would lie on a statute which gave a new right to recover certain expenses in a Court of summary jurisdiction from persons not otherwise liable. It was held by Lord Watson:‑‑

"The right and the remedy are given uno flatu, and one cannot be dissociated from the other. By these words the legislation has, in my opinion, committed to the summary Court exclusive jurisdiction not merely to assess the amount of expenses to be repaid to the undertaker, but to determine by whom the amount is payable, and has, therefore, by plain implication enacted that no other Court has any authority to entertain or decide these matters."

Finally, I may refer to the case of Wilkinson v. Barking Corporation PLD 1975 SC 457. In that case the construction of section 35 of the Local Government Super annuation Act, 1937, was in question. Asquith, L.J. observed: "It is undoubtedly good law that where a statute creates a right and in plain language gives a specific remedy or appoints a specific tribunal for its enforcement, a party seeking to enforce the right must resort to that remedy or that Tribunal and not to other:"

"11. In my humble view, the right to registration by a Trade Union having been conferred by the I.R.O., has also the liability to cancellation of registration under certain circumstances, and the statute having provided the authorities by which and the mode in which the registration was to be granted or cancelled, the right or the liability cannot be enforced in any other manner or through any other forum."

In support of his contention that no relief by way of an injuction can be granted where equally efficacious relief could be obtained by other usual mode of proceedings Mr.K.M. Nadcem relied upon 1986 MLD 265 Nomin Bai v. Ayesha Bai where it was held as follows:‑‑

"It is significant that the plaintiff has chosen to sue only for a declaration of his rights and certain injunction. No satisfactory explanation was given as to why the plaintiff did not sue for specific performance. According to section 56 clause (i) of the Specific Relief Act, no relief by way of injunction (which is purely discretionary) can be granted, when an equally efficacious relief could be obtained by other usual modes of proceeding. It is well‑established that when it is open to a person to sue for specific performance, he cannot be granted any relief m shape of a mere injunction and/or declaration.

The plaintiff seems to me to have sued for a mere declaration and injunction owing to his consciousness that a suit for specific performance would be barred by time. But he cannot circumvent the law of limitation by merely suing for a declaration and an injunction, when he could have sued for specific performance. As already stated, all rights of the plaintiff were extinguished long ago."

9. The proposition that no injunction can be granted to stay proceedings in any criminal matter as is provided under section 56 clause (c) is well settled. In the famous book of Spelling on Injunction in Article 24 it was been observed that "Equity has no jurisdiction to interfere for the prevention of crime or to enforce I moral obligation nor will it interfere for the prevention of illegal acts merely because they are illegal." In Boorewala Textile Mills v. Zeenat Textile Mills reported in PLD 1978 Lah. 305 it was held that grant of stay order with respect to stolen property subject‑matter of revision, having effect of stay of criminal proceedings cannot be granted in view of prohibition under section 56(e), Specific Relief Act. In AIR 1942 Mad. 756 re N.P. Essappa Chettiar it was held that in view of the provisions of section 56(c), Specific Relief Act a civil Court cannot stay the criminal proceedings by preventing the Court or the complainant from continuing the proceedings by issuing an injunction. The Court should not interfere with the proceedings of a local body or restrain its officers from doing their duty.

10. Exactly similar situation had arisen in A.I.R. 1928 Cal. 46.1 Commissioner for the Port of Calcutta v. Suraj Mull Jalan, where the Commissioner for the Port Trust of Calcutta had launched a projection against respondent under section 84 of Calcutta Port Act for having encroached on the High Water mark of the River Hooghly and the respondents having failed to obtain a stay of those criminal proceedings Filed a civil suit for declaration and for temporary injunction. It was held that in view of the provisions of section 56(c), Specific Relief Act a civil Court had no jurisdiction to stay by means of a permanent injunction proceedings in any criminal matter and therefore even an interim injunction for staying such proceedings would not be granted. The High Court therefore vacated the interim injunction granted by the subordinate Judge.

11. Mr. Muhammad Sharif, who appeared on behalf of the plaintiff, contended that the offence alleged against the plaintiffs was of a technical nature. The case of the plaintiffs was that since there were less than 50 workers working in a shift in their factory therefore their factory was not a factory to which the provisions of I.R.O. would apply. An application under section 23‑boo) could be given by a collective bargaining agent if there were more than 50 persons in a shift in a factory for appointment of an auditor. He therefore submitted that it was only a Civil Court which could give declaration that the order of the Government appointing an auditor was illegal and ultra vires as there were less than 50 persons in a shift in that factory and this declaration could be given by a civil Court.

12. Since in this order I am confining myself to the right of the plaintiff to get an interim stay against the pending criminal proceedings, therefore I would not like to discuss whether the suit is itself maintainable or not. This point can be decided later on. Mr.Muhammad Sharif has also cited a number of rulings. I do ! f not want to discuss them as none of these rulings is to the point.

13. I therefore, do not find any justification for granting interim stay against the criminal proceedings pending against tile plaintiff and the defendants Nos.5 to!

7. The application is therefore dismissed.

A.A./N‑198/K Application dismissed.