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Industrial Relations Ordinance (XXIII of 1969)-

-- S. 36 (2) read with Civil Procedure Code (V of 1908), O. XXXIX, rr. 1 & 2-Ad interim injunction-Whether Labour Court can pass ad interim injunction-Labour Court may have no power to pass an interim order restraining employer from terminating services of its employees in an individual grievance petition but would have to pass an interim order to main status quo in a case under S. 34 of Industrial Relations Ordinance, a question of enforcement of pro-existing right under law, or settlement and by action of opposite party such right is threatened to be violated and if succeeds there would be nothing left to adjudicate upon finally.

L. 1. C. I./l. C. A. Employees' Union v. Pakistan Insurance Corporation, Karachi and another P L fl 1975 Kar. 858 rel.

Brooke Bond (Pakistan) Ltd. v. Second Sind Labour Court Karachi and another P L D 1973 Kar. 189 and Abdul Majeed and others v. Abdul Ghafoor Khan and others P L D 1982 S C 146 ref.

Chaudhry Rasheed Ahmed for Applicant.

S. Qammaruddin Hassan for Respondent.

Date of hearing : 16th May, 1984.

This suo motu revision is directed against the order, dated 28th March, 1984, passed by the Sind Labour Court No. II at Karachi, dismiss ing an application under Order XXXIX, rules 1 & 2, C. P. C. read with section 36 (2), 1. R. O., 1969, on the ground that Labour Court has no powers to issue a temporary injunction.

2. The facts briefly stated are that the respondent company used to charge Rs. 3,500 from its employees selected for Overseas Projects. The applicants N. C. C. (Pak.) Ltd. General Employees Union raised the demand for exemption of these charges and after negotiations and concilia tion proceedings, an agreement was reached, vide settlement, dated 12th May, 1983, wherein under clause 4 (1), it is provided that company's employees proceeding on company's Overseas Projects shall be exempted from the payment of Rs. 3,500. It is contended that the respondent company violated the terms of settlement, as it was charging Rs. 3,500 from its employees going on Overseas Projects. Since the rights of the employees which were secured and guaranteed under the terms of settle ment, were infringed, an application under section 34, I. R. O., 1969 was filed against the respondent company for enforcement of such right. Along with the application, an application for temporary injunction was also filed for an interim order restraining the respondents from charging the above amount from the employees of the company. The case of the respondent company before the learned Labour Court mainly was that they were charging, the above amount from fresh recruits and not from then employee who were already in the employment of the company. The learned Labour Court dismissed the application for an interim order on the sole ground that the Labour Court had no powers to pass such an order. Aggrieved by the order the applicants have come in this ' suo motu revision.

3. I have perused the relevant material on the record and have also heard the learned counsel for the parties, Mr. Choudhry Rasheed Ahmed for the applicants and Mr. S. Qammaruddin Hassan for the respondents. Mr. Choudhry Rasheed Ahmed has mainly contended that the employees of the company have a guaranteed and secured right under a settlement not to be charged with the above-mentioned amount of Rs. 3,500 when proceeding on an Overseas Project of the respondent company, and this pre-existing right is enforceable under section 34, I. R. O., 1969. He has further contended that since this pre-existing right is being violated, the applicants can come before the Labour Court for an interim order, as, if a Labour Court cannot keep a cause of section itself alive, or permits a party to act in such a manner that the purpose of proceeding is defeated, certainly there would be nothing left to adjudicate upon. He has further contended that in such a situation an interim order to ensure, due imple mentation of any final order, that may be passed would appear, to be necessary and incidental and it cannot be said that the Labour Court can have no power to pass an order and in doing so it would be acting beyond its jurisdiction. In support of his contention, he has relied on a Single Bench decision of Karachi High Court in the case of L. 1. C. I /I. C. A. Employees Union v. Pakistan Insurance Corporation, Karachi and another (P L D 1975 Kar. 858), the facts and circumstances of which case are more or less identical to the facts and circumstances of the instant case. On the other hand, Mr. S. Qammaruddin Hassan, the learned counsel for the respondents has contended that the Labour Court has power to pass an interim order in a case where only an industrial dispute is to be determined and adjudi cated upon and not otherwise. He has relied on a Division Bench decision of Karachi High Court in the case of Brooke Bond (Pakistan) Ltd. v. Second Sind Labour Court Karachi and another (P L D 1973 Kar. 189), wherein it was held that the Labour Court had no power to pass such an interim order in an applica tion filed under section 34, I. R. O., 1969: The facts of the case involved in the D. B. decision would clearly show that an individual grievance was being adjudicated upon as the application under section 34, I. R. O., 1969 was filed by an employee of the company who alleged that he was being prematurely retired. There appears to be no dispute that the Division Bench decision of the Hon'ble High Court dealt with a case of an individual grievance when the individual grievance could also be brought in before the Labour Court in an application under section 34, before the amendment by -Act No. XXXIX ofA1973, whereby the words "or work man" were omitted from section 34, 1. R. O., 1969. I am conscious that the difficulty the learned Labour Court has come across is obviously on that account. I am also conscious of the conflict between the above mentioned two decisions and in the situation that has arisen the Hon'ble High Court alone can resolve it in its Constitutional Jurisdiction in appropriate proceedings. What I find that the learned Single Judge in the former decision considered and distinguished the D. B. decision and was still of the view that the Labour Court has power to issue an interim order when such situation arises as when a Labour Court cannot keep the cause of action alive by passing an appropriate interim order nothing would be left for it to decide in the main proceedings. It may be true that the Labour Court may be having no power to pass an interim order restraining the employer from terminating the services of its employee i an individual grievance, but in a case under section 34, 1. R. O., 196 when there is a question of enforcement of a pre-existing right under law, award or settlement and by an action of the adverse party a right i threatened to be violated and if he succeeds, there would be nothing left to adjudicate upon finally and the Labour Court, in my view, has power to pass an interim order to maintain status quo. I have considered the facts and circumstances that have arisen in the instant case and I find that in case it is not considered on merits as to whether the interim order should be passed or not, the main application under section 34, would be rendered infructuous. 1n this situation, Mr. S. Qammaruddin Hassan appearing on behalf of the respondents sought time to argue on the point that the Division Bench decision, in whatever situation will have precedence to a Single Bench decision. He has been able to lay his hands on the decision of the Supreme Court in the case of Abdul Majeed and others v. Abdul Ghafoor Khan and others (P LD 1982SC146), in support of his contention in that respect. But, I find that this authority does not support his view as it does no say that the earlier Division Bench decision of the High Court shall have precedence to a consequent Single Bench decision and would be followed in all situations and in all circumstances. I further find the learned Single Bench decision is applicable, to the facts and circumstances in the instant case on all fours. Accordingly, I am of the view that in the instant case the learned Labour Court has power to pass an interim order by way of temporary injunction.

4. The result is that the impugned order is set aside and the case is sent back to the learned Labour Court to decide the application for temporary injunction on its merits. This suo motu revision is allowed accordingly.

A. E. Petition accepted

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