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Cases Nos. 7(29) of 1985 and 7(120), 7(121) and 7(122) of 1984, decided on 1st January, 1986.

---S. 16--National Industrial Relations (Procedure and Functions) Regulations, 1973, para. 32(2)--Civil Procedure Code (V of 1908), S.151--Interim order--Bank employees facing cases of unfair labour practice before National Industrial Relations Commission--Served charge-sheets by management on same allegations for disciplinary action simultaneously--Disciplinary action sought to be stayed under S.151 of Civil Procedure Code, 1908 and also by application under Para. 32(2) of N.I.R.C. (Procedure and Functions) Regulations, 1973--Plea that (i) if employees in case before N.I.R.C. are convicted they will automatically be dismissed under Wage Commission Award: (ii) domestic enquiry on charges of complaints of unfair labour practice is illegal as it will amount to a verdict by the N.I.R.C. as against a verdict by Enquiry Officer, (iii) by holding domestic enquiry Bank would commit an act of unfair labour practice, and (iv) balance of convenience was in favour of employees because in case stay was not granted they will suffer irreparable loss--Application resisted on grounds that (i) provisions of S. 151, Civil Procedure Code, 1908 were not applicable as proceedings before N.I.R.C. were pending under a separate specific statute, (ii) no unfair labour practice had been alleged in the application hence N.I.R.C. was not empowered to pass any prohibitory order and (iii) criminal prosecution and disciplinary action being two different independent things could proceed simultaneously and result of one has no bearing on results of the other--Application dismissed by N.I.R.C.- Held: (i) Holding of domestic enquiry could not be treated as an act of unfair labour practice and plea under para. 32(2) ibid was not tenable hence application there against not maintainable, (ii) application under S. 151, Civil Procedure Code was not maintainable as N.I.R.C. is enforcing special law i.e. S.16 of Industrial Relations Ordinance, 1969 under which complaint of unfair labour practice had been filed.

P L D 1961 S C 528; P L D 1971 Lah. 217; 1980 P L C 906; PLD 1976 Lah. 611; 1985 S C M R 1062; P L D 1968 Lah. 786 and 1975 SCMR 46 ref.

1980 P L C 752-C; P L D 1973 Lah. 120 and P L D 1981 Kar. 436 held not relevant.

Sadiq Muhammad Warraich on behalf of Workers of U.B.L. and N.B.P

Raja A. Rashid for H.B.L. Workers.

Sh. Ataur Rehman on behalf of Respondents

Muhammad Kashtoonish Khan on behlaf of Workers of A.B.L and M.C.B.

Mirza Aleem Javed Baig, Cashier, Allied Bank of Pakistan and others, Altaf Hussain Shah, Assistant United Bank Limited and others, Muhammad Zafar Iqbal Cashier, Habib Bank Limited and others, and Masud Akhtar Kiani, President, Muslim Commercial Bank Employees Federation and others have submitted applications under section 151, C.P.C. for grant of stay and Raja Muhammad Saeed and others of National Bank of Pakistan have submitted applications under Regulation 3Z(2) of the N.I.R.C. (Procedure & Functions) Regulations, 1973. The petitioners have submitted that cases of unfair labour practice against them are pending before the Commission and are fixed for prosecution evidence. The complainant have issued charge sheets on the same allegations as are mentioned in their complaints before the Commission and applicants have given their replies to the charge-sheets. They have stated that if the workers in the above-titled applications are convicted they will automatically be dismissed under the Wage Commission Award and that under the Wage Board Award domestic enquiry on the charges of complaints of unfair labour practice is illegal as it will amount to a verdict by the Commission as against the verdict of the Enquiry Officer. In the case of Raja Muhammad Saeed Khan and others of National Bank of Pakistan it has been submitted that by holding the enquiry the management is going to commit an act of unfair labour practice and that the balance of convenience was in favour of the workers and that if stay is not granted they will suffer irreparable loss. It was, therefore, prayed that the Enquiry Officers of the banks may be restrained from holding the enquiries on the charge sheets served on the petitioners.

2. After hearing the preliminary arguments of the learned counsel for the applicants had issued orders and the respondents were called to submit their comments. It was submitted by the learned counsel for the banks that the main cases pending adjudication before this Commission pertain to criminal trial on the complaints of unfair labour practice, under the Industrial Relations Ordinance and as such section 151 of the Civil Procedure Code cannot be attracted under the circumstances as it was available only if the proceedings were pending under the. C.P.C. He further stated that the inherent powers under section 151, C.P.C. are not available in this case. The Commission was created by special statute and as such it has to perform its functions within the framework of this special statute. He stated that the general statute leaves the field when the special statute provides a forum and manner for doing a particular thing. It was further pointed out that no unfair labour practice has been alleged and as such the Commission was not empowered to pass any prohibitory order. He stated that it is now are established position under law that the criminal prosecution and disciplinary action are two independent things and both can proceed simultaneously and the results of one have no bearing on the results of the other. He stated that an act of unfair labour practice also amounts to misconduct for which the employer is well within its right to initiate disciplinary proceedings, which was exclusive jurisdiction of the employers. The learned counsel for the banks denied that there was any provision under the Wage Board Award under which the domestic enquiry on the charges of complaint of unfair labour practice cannot be held.

3. I have heard the arguments of the learned counsels. It was pointed by the learned counsel for the banks that a complaint of unfair labour practice was pending and the charges against the accused have been framed. He stated that the complainant was guided by the N.I.R.C. (Procedure a Functions) Regulations, 1973 and he stated that no application was envisaged under the regulations under which the disciplinary proceedings could be stopped. He stated that the charges against the accused have also been framed and that at this stage no Court can go beyond the statute. He stated that the Court has no powers to grant prohibitory order except under Regulation 32(2) and that the Commission has no powers under C.P.C. to issue an interim relief. He stated that under Regulation 32(2) no allegation or likelihood of occurrence of unfair labour practice has been spelled out as the petitioners have stated that by serving the charge sheets the banks will commit acts of unfair labour practice.

4. He stated that the petitioners have brought forward the grounds that the domestic enquiry on the same charges formed basis of the complaint and would effect the final verdict of the Commission. He stated that the accused are facing trial before the Commission for commission of acts of unfair labour practice and are being charge-sheeted for acts of misconduct. He cited P L D 1961 S C 528, which defines misconduct as any improper conduct and Article 189 of the Constitution and para. 258, Article 2 of the 1st Wage Commission Award. He stated that the applicants instigated illegal strike, which was a criminal offence and misconduct under the Wage Board Award. He stated that the Court was competent to decide whether the applicants hi- committed any unfair labour practice and that the Court was not bound by the management's order. He stated that ingredients of Regulation 32(2) require liklihood of acts of unfair labour practice on account of trade union activities but there was no such likelihood of commission of unfair labour practice. He cited 1980 PLC 752(c) and stated that not even an iota of unfair labour practice as laid down under Regulation 32(2) is likely to be committed by the management. He also cited P L D 1971 Lah. 217 in this connection. He stated that the C.P.C. does not give any power to the Commission and that the application was not competent.

5. The learned counsel for the petitioners Mr. M.K. Khan pointed out that because of enquiry the final order may effect the result in case that comas before the Commission and the defence is disclosed. In this way the applicant's case will be prejudiced. He stated that the balance of convenience was in favour of the applicants as they were still employed and if they are dismissed it will cause them an irreparable loss. He cited P L D 1973 Lah. 120 and I have gone through this case-law and I find that it is not relevant in this case. He has also quoted 1980 P L C 752. In this case the Court held that the Commission could not pass interim order of status quo and could not direct the dismissed workers to perform their duties. This ruling is also not relevant to the case. In the case-law reported in 1980 P L C 906 quoted by the learned counsel, it was held that the petition filed before any action taken after service of second show-cause notice was premature and employer cannot be restrained to take disciplinary action and that the petitioner should seek redress after final action. I feel this case goes in favour of the learned counsel for the banks. In P L D 1976 Lah. 528 it was held that particular enactment and general enactment deals with the same subject-matter--particular enactment, held governs matters and not general enactment. This citation also goes in favour of the learned counsel for the banks as it has been argued by the learned counsel for the banks that the application under section 151, C.P.C. cannot be dealt with by the Commission. In P L D 1976 Lah. 611 it was held that the Commission while seized of complaints under section 53 of the Ordinance was not empowered to order reinstatement of complainant by way of interim relief. This ruling also I am afraid goes in favour of the learned counsel for the banks. The case-law reported in P L D 1981 Kar. 436 was found not relevant to the matter under issue.

6. The learned counsel for the petitioner Mr. Warraich, stated that the Labour Court has no jurisdiction in cases where the Commission is seized of a matter. He cited 1985 S C M R 1062. I have gone through this ruling and I find that the Supreme Court has not objected to the case of the appellant being heard by the Special Judge Anti-Corruption and the order for removal of the appellant from service passed by the Senior Member, Board of Revenue of Punjab mainly on the basis of the judgment passed by the Special Judge Anti-Corruption. It was held that it does not require any elaborate arguments to show that in case the sentence is set aside and the accused officer is acquitted the very basis on which such order of removal from service stands would disappear. This shows that in case the bank passes any order of dismissal of the employees and the Commission holds it not be proper then the order of dismissal shall be held to be void.

7. The learned counsel for the applicants Raja A. Rashid, stated that if the employees are dismissed they can go to the Labour Court and in view of the fact that Commission had already taken decision, the jurisdiction of the Labour Court shall be ousted and the employees will be left with no remedy. He further stated that in Habib Bank Limited an industrial dispute has been raised and the conciliator had taken cognizance of the dispute and section 47 of the I.R.O. shall come into play and the permission of the Labour Court shall be necessary before taking any action. In this case, I feel that the Labour Court shall go into details of the inquiry and shall decide accordingly.

8. In the application under Regulation 32(2) of the N.I.R.C. (Procedure & Functions) Regulations, 1973 the only allegation about unfair labour practice is that by holding the enquiry the management is going to commit an act of unfair labour practice. If the holding of enquiry is to be treated as an act of unfair labour practice then no disciplinary proceedings can be taken against any employee and there will be indiscipline in all the organisations as the management's right to hold enquiry shall be held to be an act of unfair labour practice. This is absolutely untenable. If the employees commit any misconduct they are liable to be charge-sheeted and consequently an enquiry may be held against them. This cannot be treated as an act of unfair labour practice and there are a number of rulings on this point. In this case the application under Regulation 32(2) is not maintainable.

9. The learned counsel for the Banks has cited P L D 1968 Lah. 786 in which a Division Bench has held that the object of disciplinary proceedings is to maintain purity of public service--criminal case where instituted and disciplinary action to adjudge fitness for further retention in public service may proceed simultaneously or follow criminal case- - principle of autre fois acquit or of res judicata not applied to disciplinary proceedings--proposed second enquiry being in public interest cannot be throttled. The learned counsel for the banks also cited 1975 SCMR 46 in which the Supreme Court held that dismissal on grounds of theft unchallengeable contention that theft being an offence workman should have been proceeded in criminal and not by way of disciplinary proceedings unsustainable. It was further held that the question whether workman proceeded against had committed any theft or not--question of fact and it can only be enquired by Enquiry Officer, Labour Court is only concerned with question whether action taken against workman was in accordance with law.

10. The second set of applications is under section 151, C.P.C. I agree with the learned counsel for the banks that the application under that section is not competent. The complaint under section 16 was filed by the banks against these applicants for unfair labour practice and a charge has been framed against the accused and the cases were to be fixed for prosecution evidence. The applications at this stage under C.P. C. will amount to acquittal of the accused without hearing any evidence in this matter. This will amount to summary dismissal of the complaints filed by the banks management. This application is, therefore, not maintainable under section 151, C.P.C. as the Commission is enforcing a special law under which the complaint has been made by the complainant. Therefore, action under section 151, C.P.C. cannot be taken by the Commission. In view of the above discussions the applications are dismissed and the stay orders are recalled which were issued in the above-titled applications.

A.E.

Applications dismissed.

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