Dr. AIJAZ HUSSAIN QURESHI vs NATIONAL INDUSTRIAL RELATIONS COMMISSION

While seized of a complaint under section 53 of the Industrial Relations Ordinance (hereinafter referred to as the Ordinance) read with Regulation 32 framed thereunder, the National Industrial Relations Commission (hereinafter referred to as the Commission) has, by an interim order, directed the employer, the petitioner, to allow the complainants to resume their duties forthwith till the final disposal of the case. This interim order has been challenged by the employer, the Managing Partner, Urdu Digest Printers, under Article 199 of the Constitution as without jurisdiction, without lawful authority and of no legal effect.

2. According to the petitioner, Habibur Rahman and Muhammad Rafiq, the two respondents, who had filed the complaint before the Commission under section 53 read with Regulation 32, of the Ordinance, were dismissed after domestic inquiry into their conduct was held. They complained to the Commission that their dismissal had taken place on of their trade union activities, in violation of the provisions of law and the employers were guilty under section 53 and be punished for the offence. When, for the first time, such a complaint was taken up by the Commission on 6-1-1975, the petitioner appeared but the complainants did not on which the Commission ordered the complaint to be consigned to the record. It appears that subsequently another petition, identical in nature, was filed of which notice was served on the petitioner and the parties appeared before the Commission on 11-1-1975 and the impugned order, which is in the following words, came to be passed :- "The statement of Habibur Rahman and Muhammad Rafiq (complain--ants) recorded today shows that they have been dismissed by the respondent namely Dr. Aijaz Hassan Qureshi without any inquiry being held against them under Standing Order 15(4) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. Since, prima facie, the requirements of law have not been fulfilled, I consider it proper to order the respondent to allow the complainants to resume their duties forthwith till the final disposal of the case."

3. The learned counsel for the petitioner has challenged the legality of this order on the ground that none of the provisions of law which could be invoked for maintaining such a complaint or grievance, i.e. either sec--tion 53 or section 25 :A of the Ordinance or Regulation 32 empowers the Commission to pass such an order by way of interim relief.

4. In resisting this claim Mr. M. A. Khadim and Mr. Zia Mahmud Mirza, learned counsel for the Commission, have taken up the plea that such an order was incidental and ancillary to the main relief which could be granted in the complaint under section 53 read with Regulation 32 and the Commission was competent to pass such an order. They have for this purpose relied on the decision in Sardar Shah Bokhari v. The Chief Justice andJudges of the High Court (PLD 1965 SC 479 and Sind Employees' Social Security Institution and another v. Adamji Cotton Mills Ltd.

(PLD1975SC32

5. The questions which require determination in this case are whether the law expressly empowers the Commission to pass such an interim order in proceedings on a complaint under section 53 of the Ordinance. If not, whether such a power necessarily follows, or is implicit in the powers expressly conferred, being incidental or ancillary to it. If neither is the case whether the Commission has any inherent powers by reference to which such an order can be supported.

6. Section 53 of the Ordinance which finds its place in the portion dealing with Penalties and Procedure, is reproduced hereunder in extenso:- "PENALTIES AND PROCEDURB

53. Penalty for unfair labour practices.-(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.

(1) Whoever contravenes the provisions of section 15 shall be punishable with imprisonment which may extend to for years or with fine which may extend to five thousand rupees or with both.

(2) Any workman who contravenes the provisions of section 16 shall be punishable with imprisonment which may extend to three years, or with fine may extend to two hundred runces or with both.

(3) An officer of a trade union, a workman or person other than a workman, who contravenes, or abets the contravention of, the provisions of clause (d) of subsection (1) of section 16 shall be punishable with imprisonment for a term which may extend to three years, or with fine which may extend to two thousand rupees, or with both.

(4) Where the person accused of an offence under subsection (3) is an officer of a trade union the National Industrial Relations Commis--sion may, in addition to any other punishment which it may award to such person under that subsection, direct that be shall cease to hold the office of such officer and be disqualified from holding any office in any trade union during the term immediately following the term in which he so ceases to hold office.

(5) Whoever contravenes the provisions of section 47-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.

(6) Nothing in this Ordinance shall be deemed to exclude the jurisdiction of a Junior Labour Court or the Court of a Magistrate to try a case under this section if it is authorised to do so by a general or special order of the Commission.

7.Regulation 32 which was invoked by the complainants before the Commission provides as follows: "CHAPTER VII-UNFAIR LABOUR PRACTICE

32. Manner of dealing with unfair labour practices.-(1) Where an unfair labour practice has been committed, and the case falls under section 25-A, section 34 or section 53, as the case may be, the Commission may deal with the case under that section: Provided that the Commission while awarding punishment under section 53, may also direct the re-instatement of a worker and allow consequential benefits to him.

Where a case of unfair labour practice is likely to occur, the Commission may take the following measures, namely:

(a) it may summon all or any of the persons connected with the case which is likely to occur, hereafter in this Chapter referred to as the connected persons, hear them and hold such inquiry as it deems fit;

(b) ascertain the factors which are likely to give rise to unfair labour practice;

(c) advise, direct or prohibit all or any of the connected persons to do or refrain from doing any act or to conduct themselves or their affairs in a manner calculated to avoid occurrence of unfair labour practice;

(d) reprimand or warn all or any of the connected persons that if they conduct themselves in an improper way it would be deemed to be in furtherance of the Commission of an offence punishable under section 53; and

(e) initiate security proceedings in order to prevent the occurrence of an unfair labour practice.

(3) Where a person whom the Commission has reprimanded or warned under sub-regulation (2) commits an unfair labour practice, the Commission may consider, for the purpose of awarding punishment under section 53, the reprimand or warning as a circumstance aggravating the offence."

8. Habibur Rahman respondent claimed to be General Secretary, Employees Union Urdu Digest, while Muhammad Rafiq respondent claimed to be Propaganda Secretary of the Union. Their grievance before the Commission was that they were summarily dismissed. By the petitioner without any enquiry. It was a part of victimisation for their being office --bearers of the Union.

9. Section 15 of the Ordinance lists the unfair labour practices on the part of employers and prohibits dismissal, discharge, removal from employment etc. Of a workman who participates in the promo--tion, formation or activities of a Trade Union. Subsection (8-A) of section 53 makes a violation of this prohibition punishable with imprisonment which may extend to for years or with fine which may extend to five thousand rupees or with both. It is the proviso to Regulation 32 which confers an express power in the following words: "Provided that the Commission while awarding punishment under section 53 may also direct the re-instatement of a worker and allow consequential benefits to him."

10. It is clear from this survey of law on the subject that there is no express power conferred on the Commission to order re-instatement by' way of interim relief while trial of a complaint under section 53 of the Ordinance or Regulation 32 is in progress.

11. The Regulations do have a statutory basis and force and they do expressly provide and empower the Commission to direct the re-instatement of the employees. But such a direction has been made dependent on the! Commission's finding the person standing trial guilty under section 53 of) the Ordinance. Such a power of directing re-instatement is not ancillary orb incidental to the process of adjudication but is consequential to a finding of guilty. It is only when the Commission has arrived at the guilt of the', employer that a further discretion is required to be exercised in the matter, of directing the re-instatement of the employees. In other words, the precondition of the finding of guilt has to be satisfied before the power to direct re-instatement either finally or as an interim measure, can be ordered. As the scheme of the Act itself contains no provision for determining ad interim the guilt of a person charged of the offence, the consequential relief dependent on final adjudication cannot be availed of to provide interim relief. Keeping in view the scheme of the Ordinance and the Regulation the power to direct re-instatement does not appear to be either incidental or ancillary. Instead, it appears to be consequental and therefore it cannot be exercised ad interim only because the jurisdiction to try an offender has been conferred on the Commission.

12. The learned counsel appearing for the Commission have contended that the Commission has ample powers under section 22-E read with Regulation 32 to prevent the occurrence or the recurrence of unfair labour practice. It is true that the Commission has vast powers under the law to prevent the occurrence or recurrence of unfair labour practice and as clause (g) of subsection

(8) of section 22-A itself shows "it has been empowered to take in such manner as may be prescribed measures calculated to prevent an employer or workmen from committing an unfair labour practice." Clause (2) of Regulation 32 provides in detail the preventive measures which can by taken. On the strength of such powers it is contended that the Commission could direct the re- instatement of the workers while seized of their complaint under section 53 of the Ordinance because it was a sort of continuing wrong.

13. The preventive powers are always distinguishable from punitive powers and ordinarily no such difficulty is experienced. In the case before me the Commission itself while passing the interim order took it to be a case of dismissal by the employer of the complainants without observing the formalities of the law. On this view of the matter, it was to be wholly an ex post facto inquiry in to the manner of dismissal and nothing more. If the dismissal was held to be not in accordance with law and such as may be punishable under section 53 of the Ordinance or amounting to unfair lobour practice, the necessary penal provisions had to be applied. It was not at all a case of either a continuing wrong or of the exercise of powers to prevent the occurrence or recurrence of the unfair labour practice.

14. On the finding that the power to direct re-instatement is not incidental or ancillary but consequential to the power to find an employer guilty under section 53 read with Regulation 32, there is no difficulty in distinguishing the cases of Sardar Shah Bokhari and Sind Employees Social Security Institution. In the former it was held that "the power to direct ad interim suspension of the licence of an Advocate against whom an enquiry is pending, is really ancillary to the power of punishment, after final adjudication and therefore, the High Court should be deemed to have that inherent power to pass such an order in an appropriate case it is clearly in the public interest that such a power should be available and neither any principle nor authority has been cited to negative such an implied power". The ad interim suspension of the licence was, in other words, held in this reported case to be a procedural requirement of the enquiry which could lead to its suspension as a punishment by itself. In the case in hand such- a re-instatement ad interim, cannot on any reasoning be taken to be a procedural requirement of the process of adjudication or a part of the main relief itself. It is actually consequential to the main relief and cannot come into existence before that of which it is the consequence.

15. In the latter reported case the powers of an Appellate Authority were in issue and it was held that the power to grant interim relief by suspending wholly or partially, the operation of the order appealed against is reasonably incidental or ancillary to the main appellate jurisdiction. In the case in hand the order of termination of employment was not directly under challenge. The complaint was regarding an offence committed in breach of provisions of section 15 of the Ordinance and made punishable by section 53. It was only after holding the persons complained against guilty that the grant of relief to the complainant against such an order by his re- instatement could be examined.

15-A. If the power to grant relief ad interim is not expressly conferred, nor follows by necessary implication and is neither incidental nor ancillary to the powers so possessed it is difficult to sustain it by reference to any inherent powers of a Tribunal. The Tribunal being a creation of a statute having the limits of its jurisdiction defined cannot be attributed any such reserve oaf inherent powers.

16. The upshot of the discussion is that the petition is allowed, the impugned order of the Chairman directing re-instatement ad interim, pending trial of a complaint under section 53 read with Regulation 32, is declared to be without lawful authority and of no legal effect. In the circumstances of the case no order is made as to costs.