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Writ Petition No. 4159 of 1981, decided on 12th December, 1981,

--- Ss. 36 45 & 53 read with Criminal Procedure Code (V of 1898). S. 262 and National Industrial Relations Commission (Pro cedure and Functions) Regulations, 1973, Regln. 32‑Unfair labour practice‑Procedure‑Complaint before National Industrial Rela tions Commission‑Complainant making additional application for interim relief for stay of domestic enquiry‑Employer's counsel appearing in response to summon in respect of application for interim relief‑Main complaint dismissed by National Relations Commission‑Order of Commission impugned by Writ Petition before High Court as invalid on plea that employer, allowed to participate in preliminary proceedings against provisions ‑of Criminal Procedure Code, 1898 and according to. S. 36 of Industrial Relations Ordinance, 1969 Summary procedure prescribed under Criminal Procedure Code, 1898 had to be followed ‑Participation of employer's counsel only in connection with interim relief application‑Neither any cross‑examination of prosecution witnesses in main complaint made nor any arguments addressed by counsel of employer‑Proceedings in circumstances, held, suffered from no defect‑No sufficient reasons for interference in extraordinary constitutional jurisdiction‑Writ jurisdiction‑Provisional Constitu tion Order (P. O. I. of 1981), Art. 9.

Muhammad Zaman Qureshi for Appellant.

Muhammad Nawaz Malik for Respondents 2 to 4.

Dates of hearing: 23rd November and 2nd December, 1981.

The petitioner filed a complaint before the Chairman, National Industrial Relations Commission (N. I. R. C.) under section 15 read with section 53 of the Industrial Relations Ordinance, 1969 against Qazi Rashid Ahmad, Manager, Progressive Papers Limited, Lahore. The petition was taken up by Mr. Justice (Rtd.) Ata Ullah Sajjad, Chairman, N. I. R. C. on 4th June, 1980. Preliminary statement of petitioner was recorded. The case then came up for hearing before Mr. Justice (Rtd.) Dr. Ibrahim Mahmud, Chairman, N. I. R. C. on 17th July, 1980. Later on, on 3rd December, 1980 the petitioner (complainant) filed an amended petition and impleaded Mr. Z. A. Sulehri, Mr. Haroon Saad and Mr. Rifaquat Hussain Shah also. As three other persons were impleaded as respondents, the preliminary statement of the petitioner was recorded again on 5th January; 1981. The statement of Ghulam Mohyud din, witness, for the complainant was recorded on 4th February, 1981 before Dr. 1. Mahmud, Chairman, N. 1. R. C. After recording the state ment of Ghulam Mohyuddin P. W. adjourned the case for hearing argu ments to determine whether prima facie a case has been made out, and ii so, against which of the respondents.

On 28th April, 1981 Dr. Abrahim Mahmud, Chairman, National Industrial Relations Commission passed the order of assigning the case to Mr. Mahmud Akhtar, Member of the National Industrial Relations Commission for disposal and the parties were directed to appear before Mr. Mahmud Akhtar, Member on the 7th May, 1981.

2. After hearing the arguments on the 15th of July, 1981, Mr. Mahmud Akhtar, Member National Industrial Relations Commission dismissed the complaint of the petitioner vide orders dated the 28th July, 1981.

3. The petitioner filed an appeal against the order dated 28th July, 1981 which was heard by the Tribunal, consisting of Mr. Rais Ahmad Jaffery, Senior Member, Mr. Aziz Ahmad and Mr. Moeen‑ud‑Din Khan. Members. The appeal was dismissed vide orders dated 10th August 1981. The present petition has been filed to challenge these two orders. It was inter alia contended that according to section 36 of the Industrial Relations Ordinance (XXIII of 1969), Labour Court shall follow as nearly as possible the Summary Procedure as prescribed under the Code of Criminal Procedure. 1898. It was argued that the respondents were allowed t participate in the preliminary proceedings of the complaint which was not warranted according to the provisions of the Code of Criminal Procedure. The petition was admitted to hearing on this ground.

4. Arguments of the learned counsel for the parties heard. Learned counsel for the respondents lids contended that it has wrongly been averred that the respondents or their counsel over participated in the proceedings in the application under section 15 read with section 53 of the Industrial Relations Ordinance, 1969 against the respondents. He has submitted that the respondents and sometimes their counsel appeared before the learned Tribunal, but each time they were summoned to reply and counter the different applications submitted by the petitioner for interim relief under Regulation No. 32 of the National Industrial Rela tions Commission (Procedure and Functions) Regulations, 1973. Sometimes the applications were made, that the salary of the petitioner is not being paid and sometimes the applications were made that he is being dismissed and that the respondents be directed not to pass the orders of dismissal of the petitioner during the pendency of the complaint. He has referred to the order‑sheet and has stated that‑ of the orders, where the presence of the respondents or their counsel is marked, shows that the respondents or their counsel participated in any manner in the proceedings conducted in pursuance of the complaint of the petitioner (complainant). The comments filed on behalf of the respondents were in reply to the applications for interim relief. In one of the replies, replies on merits were also submitted because in the application for interim relief learned counsel for the petitioner (complainant) had submitted that the conten tions of the petitioner in the complaint may also be taken as part and parcel of the application for interim relief. On the second application under Regulation No. 32 of the above‑said Regulations, interim relief was ‑granted but the application' was adjourned for further arguments, and this petition continued coming up with the complaint without any final order and the learned counsel for the respon dents had been appearing to represent the respondents in the interim relief application. He has contended that a reference to the two dates on which the statements of the complainant (petitioner) and his witness were recorded, will make it clear that in spite of the presence of the counsel for the respondents, he did not cross‑examine theta. Statement of the peti tioner was recorded on 5th January, 1981 and that of his witness on 4th February 1981. It is not even recorded that any opportunity to cross‑examine was given to the respondents. He has contended that even in the final order passed, dismissing the complaint, it is not recorded that the counsel for the respondents has been heard or that he made any contentions. On the other hand the contentions of the learned counsel for the petitioner (complainant) have been recorded specifically. He argued of that it was fully known to the respondents and their counsel that they have no right to participate and so they have been scrupulously avoiding to take any part in the proceedings pertaining to the complaint.

5. Learned counsel for the petitioner making reference to the order sheet has laid stress on the fact that the presence of the respondents' counsel is marked, on different dates of hearing. He has, however, not been able to point out as to how actually the counsel for the respondents participated. He has even not been able to show anything from the record or by arguments as to why the P. Ws. were not cross‑examined by the counsel for the respondent, if he was participating in the proceedings on behalf of the respondents. He has, however, referred to paragraph 7 of the judgment of Mr. Mahmud Akhtar; learned Member, N. I. R. C. wherein it is mentioned that he has examined the record produced before him; and argued that this record was produced by the respondents and production of the record by the respondents amounted to participation of the respondents in the preliminary proceedings in the complaint. In this regard he has placed reliance on Faiz Muhammad arid 3 others v. The State and another (1978 P Cr. L J 833). Learned counsel for the respondents has contro verted this argument. He has stated that there is nothing on record to show that the respondents had produced this record. 13e has argued that some copies of the record referred to were filed by the petitioner (com plainant). He has further submitted that on an application of the petitioner under Regulation 3" with regard to the stay of proceedings of departmental enquiry against the petitioner, once the enquiry file was sent for by Dr. Ibrahim Mahmud. Chairman, N. I. R. C. in connection with the application for interim relief. There is no order .on the record of summoning this file but the interim order dated 19th March, 1981 shows that the enquiry tile had come up before Dr. Ibrahim Mahmud, Chairman and was returned on that day on the request of Mr. Abdul Ghani, Legal Assistant for examination by Mr, ‑Z. A. Sulehri, Chief Executive of the Progressive Papers Ltd. with a direction that it shall be produced on .the next date. Learned counsel for the respondents has contended that it is clear that no record was produced by the respondents for adjudication of the complaint of the petitioner.

6. I have considered the arguments of the learned counsel for the parties. I have also gone through Faiz Muhammad's case (2). The facts of the reported case are different. In that case the respondents were summoned by the Magistrate during preliminary proceedings, they participated in the proceedings and produced statements recorded under section 164 of the Code of Criminal Procedure and other documents. The com plaint was dismissed thereafter. On a revision filed, the learned Addi tional Sessions Judge remanded the case for further enquiry in view of the procedural defects. In the present case the respondents were not summoned by the learned Member, N. I. R. C. for taking p tit in the proceedings in the complaint filed by the petitioner. They were only issued notices to appear in interim relief application, which of course, under the law was required to be done. There is no procedural defect in this case. It may be noted that in the above‑cited case the petition for quash ment of proceedings was moved by the respondent of that case and the same was accepted, in spite oaf the fact that due to procedural defects the case had been remanded by the learned Additional Sessions Judge for further proceedings.

There are no sufficient reasons calling for interference in the order dated the 28th July, 1981 by exercising. extraordinary Constitutional jurisdiction. The petition is dismissed.

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