THE HIGH COURT OF SINDH, BENCH AT SUKKUR

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Constt. Petition No.S–68 of 2022

DATE OF

HEARING

ORDER WITH SIGNATURE OF JUDGE

26.05.2022

Mr. Ghulam Murtaza Korai Advocate for petitioner.

Mr. Jamshed Ahmed Faiz Advocate for private respondents.

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ARSHAD HUSSAIN KHAN, J.- Through instant Constitutional Petition, the petitioner has called in question the order dated 07.04.2022 passed by learned Member NIRC Sukkur in case No.4B(427)/2015-K, with the following prayers:

a) That this Honourable Court may be pleased to declare the modification in the order dated 09.03.2022 done by respondent No.2 on 07.04.2022 is illegal, null and void, ab initio and without any justification.

b) That this Honourable Court may be pleased to restrain the respondent No.2 from further proceeding in the above case as the petitioner party wants to file appeal against the respondent No.2 but the member of full bench of NIRC is not available thereafter they could not filed the same and respondent No.2 proceed the matter day to day thereafter in the interest of justice to pass the interim order and restrain the respondent No.2 from further proceeding till the final decision of instant petition.

c) To grant any other relief, which this Honourable Court deems fit and proper in the circumstances of the case.

2. Pursuant to the notice, counsel for private respondents filed objections to the petition while raising objection, inter alia, with regard to the maintainability of the petition sought dismissal of the petition.

3. Learned counsel for the petitioner in his arguments has mainly contended that learned Member NIRC while passing the impugned order in fact modified his earlier order dated 09.03.2022. He while referring to the order dated 09.03.2022, further contended that pursuant to the said order present respondents (petitioners before the NIRC) had to produce one witness from each group of different categories of trade/job in the case before the NIRC, whereas learned Member NIRC upon completion of cross examination of one witness of the respondents closed their side of evidence, which is against the earlier consent order and, in fact, a modification of earlier consent order is untenable in law.

4. Conversely, learned counsel for private respondents in his arguments, inter alia, contended that the petitioner has not exhausted the remedy as provided under Section 58(d) of the Industrial Relations Act, 2012; hence, the petition is liable to be dismissed being not maintainable in law. He has further contended that in terms of the order dated 09.03.2022, each and every petitioner (present private respondents) was required to file separate affidavit-in-evidence in the case, on which the petitioners’ side filed separate and individual affidavit-in-evidence of all the petitioners through their attorney-Muhammad Umar, which were taken on the record by learned Member NIRC. It is also contended that since there are as many as 259 petitioners in the case, therefore, a separate application was filed to seek permission for producing one witness, i.e., an attorney on behalf of the petitioners for cross examination, which was allowed and the respondents’ counsel, without raising any objection cross examined the petitioners’ attorney-Muhammad Umar at length and thereafter the side of the petitioners’ evidence was closed and the matter was fixed for affidavit-in-evidence of respondents side. However, when they did not file any affidavit-in-evidence, the side of the respondents (present petitioner) was closed, and the matter was fixed for arguments, and that after the arguments having been heard the matter is reserved for judgment. It is further contended that since the stay is operating in this case, therefore, the oldest matter pending before NIRC Sukkur could not be decided. It is argued that the order impugned in the present proceedings cannot be termed as modification of earlier order as attorney of all the private respondents (petitioners before NIRC) have been cross examined by learned counsel for the present petitioner. Lastly, he has argued that there is no illegality and irregularity committed by learned Member NIRC, which could warrant interference by this Court in its writ jurisdiction.

5. From the record it appears that present respondents No. 3 to 260 have filed petition bearing No.4B(427)/2015-K before respondent No.2 (Member National Industrial relation Commission Bench at Sukkur) under section 33(8) of IRA 2012 R/w Industrial Commercial Employment Standing Order/Ordinance 1968, for regularization of their service in the present petitioner-company (respondent before NIRC) being their being their worker/laborer. Record also transpires that on 09.03.2022 learned Member NIRC passed the order in case No.4B(427)/2015-K, and for the sake of convenience, relevant portion of the said order is re-produced as under:-

“I have heard arguments of both the learned counsel for parties on the application filed by the respondent today and I am of the considered view that since there are 259 petitioners belonging to different categories of trade/job therefore, affidavit-in-evidence of each and every petitioners is required to be filled. After filing affidavit-in-evidence by all the petitioners the evidence on the basis of same job/trade can be recorded and one of the group of same trade such as Malhi, Electrician etc. can be cross examined by the counsel for respondents which is agreed by the both counsel that from each group of each trader, one petitioner be cross examined. Let this case be fixed for filing of affidavit-in-evidence by all the petitioners. In view of the above the application filed by respondent No.1 today is hereby disposed of. The matter is fixed for filing affidavit-in-evidence by the petitioners on 18.03.2022”.

6. Record shows that pursuant to the above order, affidavit-in- evidence of all the petitioners (present respondents) have been filed thereafter, on 06.04.2022 examination-in-chief of the attorney of the petitioners (present private respondents) was recorded, and thereafter, the matter was adjourned to 07.04.2022 for cross- examination of the said witness. On 07.04.2022 following order was passed;

“The bench of NIRC vide order dated 09.03.2022 with the consent both the counsels decided that one of the petitioner from each trade/group shall be examined and evidence be recorded. It was also agreed vide order dated 09.03.2022 that all the petitioners shall file their individual affidavit-in-evidence, Muhammad Umar Shar S/o Abdul Qayum has filed power of attorney on behalf of all the petitioner’s along with his affidavit-in-evidence. The learned counsel for the petitioners file an application that since the affidavit-in-evidence of all petitioners have been individually filed, therefore, the power of attorney holder on behalf of all the petitioners shall be examined and his evidence be recorded/cross examined on behalf of all petitioners.

The case was fixed on 06.04.2022 for cross examination of the petitioners on 06.04.2022 the examination-in-chief of Muhammad Umar Shar, has been recorded and all the relevant documents have been Exhibited/marked along with power of attorney in the presence of learned counsel for the respondent, the learned counsel for the respondents has filed an application today with request for cross examination of all the petitioners, after detailed cross examination of Muhammad Umar Shar, holder of power of attorney pertaining to all the petitioners, after cross examination of the power of attorney holder during last three (3) hours, now the counsel for respondents want to examine and record evidence of all the petitioners which are 222 petitioners which is not possible, if the counsel for the respondents want to cross examine all the petitioners, the learned counsel for the respondents contended that all the petitioners be present at least one day so that he could know that how many actual petitioners were pursuing their case

Today, the counsel for the petitioners wants to close the evidence of the petitioner’s side, therefore, the evidence of petitioners is closed and counsel for the respondents to submit the affidavit-in-evidence on behalf of respondent. The petitioners who will not come on the fixed date his name shall be deleted from the list of petitioners in the grievance petition. The matter is adjourned to 12.04.2022 for cross examination of the respondent’s witness”.

7. From the perusal of above order, it appears that the petitioners (present private respondents) in support of their stance before NIRC produced their attorney to give evidence on their behalf which are more than two hundred in numbers. Record reflects that in terms of order dated 09.03.2022 (Supra), present respondents filed their respective affidavits through their attorney who was subsequently cross examined by the counsel of present petitioner (respondent before NIRC) without raising any objection and as such he is estopped from raising any objection of the nature after completion of the cross examination of said witness. Record further transpire that the said attorney was cross examined at length and after completion of the cross examination, the counsel for the respondent (present petitioner) sought to cross examine all the petitioners, which was, keeping in view the number of petitioners, not possible and upon the application of petitioners’ counsel the side of petitioners’ evidence was closed, and thereafter matter was fixed for respondent’s evidence. Record also shows that on 12.04.2022, counsel for the respondents (present petitioners) instead of filing affidavit-in-evidence on behalf of respondent’s witness, sought adjournment whereupon following order was passed;

“In the morning at 10:00 a.m. the learned counsel for the respondent No.1 filed an application for proceeding the case in purview of order dated 09.03.2022 or grant time for filing appeal against the order dated 07.04.2022. The learned counsel for the respondent No.1 did not raise any objection on 07.04.2022 and cross examined Mr. Muhammad Umar Shar, holder of power of attorney for all other petitioners. The learned counsel for the respondent No.1 has already cross examined at length almost for three (3) hours to Mr. Muhammad Umar Shar on behalf of all petitioners being holder of power of attorney on behalf of the petitioners. The case was fixed today for cross examination of the respondent No.1 witness whereas, the counsel for the respondent No.1 has filed the subject application, the learned counsel for the respondent No.1 through his own act by cross examining Mr. Muhammad Umar Shar, holder of power of attorney has been stopped to challenge the order dated 09.03.2022 and that order dated 09.03.2022 has already being modified by the undersigned vide order dated 07.04.2022 in the presence of the learned counsel for the respondent No.1 and he did not raise any objection on 07.04.2022. The application for granting time for filing the appeal against order dated 07.04.2022 is also turned down as nobody or any counsel do not require time from any Presiding Officer for filing the appeal against any order under Section 58 of IRA, 2012, the advocate for the respondent No.1 is at liberty to challenge the order dated 09.03.2022 and 07.04.2022 if he desires so. Now at second call of the case, the counsel for the respondent No.1 submitted another application for seeking time to file affidavit-in-evidence on behalf of respondent No.1 shows that wants linger on this case at any cost without second reason. It is being an old case of 2015, the lingering on the case shall be tantamount to deny the justice to the petitioners”.

In view of the above, both the applications filed today by counsel of respondent No.1 are disposed of and case is fixed for filing affidavit-in-evidence of the witness on behalf of respondent No.1, in case the counsel for respondent No.1 fail to file affidavit-in-evidence on 13.04.2022, their side shall be closed and the case shall be fixed for final arguments on 14.04.2022 and in case on 14.04.2022 either side failed to advance arguments, the case shall be decided on hearing the available side and on the basis of record available on the case file. The matter is adjourned to 13.04.2022 for filing affidavit-in-evidence of the witness on behalf of respondent No.1 as well as for cross examination of witness for respondent No.1”.

8. On 13.04.2022, counsel for the respondents (present petitioner) instead of filing affidavit-in-evidence of the witness in terms of earlier order, sought adjournment on the ground of witness’s illness. However, the said application was rejected through a detailed order and side of the respondent (present petitioner) for producing evidence was closed.

9. In view of above, it does not seem that learned Member NIRC Sukkur while passing the impugned order has committed any illegality or material irregularity, which calls for interference by this Court in exercise of its Constitutional jurisdiction. Resultantly, instant Constitutional Petition is dismissed being devoid of any legal substance. However, learned Member NIRC Sukkur shall provide one fair opportunity to the present petitioner (respondent before NIRC) for producing it’s evidence and after hearing the counsel for the parties afresh, shall decide the matter in accordance with law.

JUDGE

Ihsan