ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

C.P. No.D-1049 of 2010

Date Order with signature of Judge

Present

Mr. Justice Muhammad Ali Mazhar

Mr. Justice Abdul Maalik Gaddi

M/s.Shell Pakistan Limited……………………….Petitioner

vs.

National Industrial Relations

Commission & another…………………………Respondents

25.10.2016

Mr. Mehmood Abdul Ghani, Advocate for Petitioner

Mr. Shahenshah Hussain, Advocate for Respondent No.2

Sheikh Liaquat Hussain, Standing Counsel

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Muhammad Ali Mazhar,J.This petition has been brought to challenge the Order dated 18.12.2009 passed by the learned Member NIRC Bench Karachi, in case No.4A(89)/2009-K and the Order dated 22.3.2010 passed in Appeal No.12(02)2010-K by the learned Full Bench of the NIRC. The Single Member, NIRC, Bench Karachi, vide Order dated 18.12.2009 restrained the petitioner’s management in the following terms:

“In view of above discussed facts and circumstances I am of the considered view that petitioner union has prima facie made out a case for stay. Accordingly the application under Regulation 32(2)(c) of NIRC (P&F) Regulations, 1973 is allowed and the interim stay order dated 01.06.2009 passed by this Bench of Commission stands confirmed. Petitioner is directed to file affidavit-in-evidence on the next date. To come up on 09.01.2010 for filing affidavit-in-evidence by the petitioner.”

2.Since the petitioner’s management was aggrieved by the aforesaid order therefore they filed appeal before the Full Bench, NIRC however their appeal was dismissed vide Order dated 22.3.2010 in the following terms:

“CBA being the representative body can legitimately come forward in case the management resorts to annihilation of workers enmass. We are also not inclined to accept the proposition that neither the petitioners have a prima facie case nor they would suffer irreparable loss in the event of refusal of the ad-interim injunction. In these days of unparallel economic depression when citizens are committing suicides and cattle fare markets are converting into human fare markets, snatching of loaf from the mouth of starved children of workmen, unjustified even for minutes, will decidedly clothe such person to say that he suffered irreparable loss.

Thus scrutiny of the matter as it obtains will oblige us not to interfere with the impugned order passed by the learned Member. Resultantly, we dismiss this appeal.”

3.The learned counsel for the petitioner argued that the union has no right to espouse the cause of individual worker and this objection was raised before the learned Member, NIRC and Full Benchbut it was not appreciated. In support of this contention, the learned counsel referred to 1984 PLC 1359 and 1992 SCMR 36(Karachi Pipe Mills case). He further argued that at the time of passing interlocutory order by the Single Bench, NIRC 15 employees of the petitioner i.e. the members of the respondent No.2 were not in job despite that without issuing any notice to the management the interlocutoryorder was passed which was subsequently confirmed in the same terms. It was further averred that 15 individual employees have already filed their grievance petitions before the NIRC for appropriate relief and their cases are pending and in fact the restraining order passed earlier regarding them has lost its efficacy. The proper course is to proceed the case of individual workers rather than union case though contempt application for the alleged violation is also pending in the union’s case. It was further contended that reorganization and or retrenchment is the right of employer which cannot be considered an act of unfair labour practice. Earlier similar controversy has already been decided by NIRC therefore the pending case of respondent No.2 is also hit by principle of resjudicata.

4.On the contrary, the learned counsel for the respondent No.2 argued that at the time of filing the case before the Single Bench, NIRC, 15 members/employees of the respondent No.2 were in job but in violation of the interim ordertheir services were terminated and in this regard, he confirmed that contempt application is also pending. So far as the question of jurisdiction raised by the counsel for the petitioner, he argued that being union of the workers, the respondent No.2 could have moved to the court to safeguard the interest of their members collectively against the scheme of retrenchment floated by the management which was based on malafide intention to get rid of union members only.

5. This petition is pending since 2010 and vide Order dated 20.4.2010, when this petition was placed before the learned Division Bench of this court, following interim orders were passed:

“Issue preadmission notice to the Respondent No.2 for 23.4.2010 at 12 noon. Comments to be filed. In the meanwhile the workers of the Respondent Union shall not create any law and order problem at the premises of the Petitioner.”

6. It is also an admitted fact that the case of union is pending while 15 other grievance petitions filed by individual membersof the respondent No.2 are also sub-judice for appropriate relief. It is also a fact that against the interlocutory order, the petitioner filed appeal in the NIRC which was dismissed. This constitution petition has not been filed here to challenge the vires or validity of any law but against the impugnedorders passed by single member NIRC and Full Bench of NIRC. During pendency, the learned counsel for the petitioner filed two interlocutory applications C.M.A NO.31670/2014 under Order 6 Rule 17 C.P.C in this petition for amendmentand he sought permission to incorporate some additional grounds while another C.M.A NO.31671/2014 under Order 1 Rule 10 C.P.C for impleading Federation of Pakistan through Ministry of Human Resources/Labour and Ministry of Law. The petitioner wanted to add grounds to challenge the validity of NIRC Regulations after 18^thAmendment in the Constitution. The issue related to the validity of the Industrial Relations Act 2012 has already been decided by the Full Bench of this court as far as its relates to the Trans-provincial organizations and legislative powers to make the lawvide order dated 4.8.2014 passed in CP.NO.D-3195/2010 and in connected petitions. However we reiterate that at present, the complexion and foundation of this petition is to challenge the restraining order passed by single member NIRC which was affirmed by the Full Bench therefore, we do not find any justification to allow any such amendment at this stage which will amount to change the entire complexion and become cause of further delay the matter not only here but also in NIRC.

7. So far as the argument advanced by the learned counsel for the petitioner that preliminary objections were not decided.In this regard, we would like to observe that only injunction application has been decided so far, but due to pendency of this petition since 2010, the main case is still pending. The petitioner is not prevented to raise the objections regarding the jurisdiction and maintainability at the original forum. At present, both the impugned orders are confined to the restraining orders against the management not to commit an act of unfair labour practice. This is also a crucial point which petitioner’s counsel asserted that at the time of passing interlocutory order, the workers were not in job, while the learned counsel for the respondent No.2 robustly argued that at the time of passing restraining order, the union members/employees were in job. This controversy in the union case cannot be decided without recording evidence. Even to decide contempt application, NIRC has to examine whether any coercive action was taken after restraining order passed by NIRC or at the moment when the order was passed ample evidence is available to prove that employees were not in job. However, one thing is clear from surveying both the impugned orders that the question of jurisdiction as to whether union can spouse the cause of individual worker or not? And issue of maintainability as to whether the right to exercise retrenchment of workers may be considered an act of unfair labour practice have not been dealt with in the proper manner nor the case law quoted by the counsel for the petitioner have been discussed in both the impugned orders. The question of jurisdiction and or challenge to the maintainability of the case if raised substantially by the other side thenthe court seized of the matter must make some efforts to deal and decide such objection first to save the time of court and the parties as well.

8. After arguing at some length, the learned counsel for the parties agreed the disposal of this petition in the following terms:

(1)The learned Single Member NIRC will first decide the objections to the jurisdiction and maintainabilityraised by the petitioner in Case No.4A (89)/2009-K--24(98)/2009-K within one month without being influenced by the order of Full Bench NIRC dated 22.3.2010. The effect of filing individual cases by the employees during pendency of Union (respondent No.2) case will also be examined by the learned Single Member NIRC.

(2)In case, the objections raised by the petitioner are not found sustainable and the learned Member decides to proceed further then main case will be proceeded with the contempt application and the learned Single Member NIRC will decide the case within next one month. If the learned Member is reached to the conclusion that prima facie a case of contempt is made out then he will proceed contempt applicationin accordance with law but till such conclusion, the personal appearance of the alleged contemnors will remain dispensed withand they will be represented through their counsel as ordered earlier by this court on 10.8.2011.

(3)All pending applications are also disposed ofaccordingly.

Judge