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Before Saleem Akhtar, J
SAJJAD MAHMOOD AND ANOTHER-Petitioners
versus
THE PRESIDING OFFICER AND F. C. M. OF
SIND LABOUR COURT NO. V, MUSLIMABAD
KARACHI AND 3 OTHERS-Respondents
Constitutional Petition No. S-80 of 1983, decided on 22nd November, 1986.
(a) Industrial Relations Ordinance (XXIII of 1969)---
--- Ss. 15(c) (d) & 53(1-A) - Constitution of Pakistan (1973), Art. 199-Unfair labour practices-Initiation of proceedings against company and its management-Notice by Labour Court challenged by officers of company in constitutional jurisdiction-Plea of lack of jurisdiction of Labour Court although not specifically taken in constitutional petition yet order and proceedings of Labour Court were challenged to be without lawful authority and of no legal effect-Respondents, held, were not taken by surprise by introduc tion of such plea as they were allowed opportunity to submit written arguments on same besides arguments addressed by their counsel -Challenge to jurisdiction being based on interpretation of provisions of Industrial Relations Ordinance 1969 without investigating facts of the case, petitioner, held, was entitled to press plea of lack of jurisdiction in spite of absence of specific plea in constitutional petition.
(b) Industrial Relations Ordinance (XXIII of 1969)-----
--- Ss. 15, 16, 22-A(8), 35, 53 & 64-Functions and jurisdiction of National Industrial Relations Commission-Initiation of prosecution for unfair labour practices-National Industrial Relations Commis sion is empowered to refer cases of unfair labour practices to Labour Court for report or disposal - Limitations on exercise of powers of Labour Court to initiate prosecution suo moto.
The functions and jurisdiction of N. I. R. C. have been specified in section 22-A(8), I. R. O. which inter alia provides that N. I. R. C. has jurisdiction to try offences punishable under section 53 except those mentioned in subsections (1) and (5) and to deal with cases of unfair Labour practices specified under sections 15 and 16, I. R. O. N. I. R. C. has power on the application of a party or suo mote to initiate prosecution, trial or proceeding in respect of matters relating to its functions. It can also withdraw any application or proceedings or appeal relating to unfair labour practice or refer such cases to Labour Court for report or disposal. Subsection (11) provides that except the cases referred to the Labour Court under subsection (10-A) and cases of unfair labour practice, the Labour Court shall not entertain or take any action relating to matters falling within the jurisdiction of N. 1. R. C. Subsection (12) provides that section 22-A does not debar the Labour Court from entertaining cases of unfair labour practice. In order to determine whether Labour Court has the jurisdiction to try offences under section 53, one has to look to the other provisions of the I. R. O. Under section 35(5)(c) the Labour Court is empowered to try offences under I. R. O. Section 53 provides penalty for unfair labour practice. Section 53(6) specifies that nothing in the Ordinance shall be deemed to exclude the jurisdiction of the Labour Court to try any case under section 53 if it is authorised to do so by a general or special order of the Commission. The effect of these provisions is that although the Labour Court is empowered to try offences under the Ordinance, limitation has been placed by section 53 to the effect that it can try offences under this section only if authorised by the N. I. R. C. Section 64 provides that except as provided by the Ordinance no Court other than the Labour Court or that of a 1st Class Magistrate shall try offences under the Ordinance. This provision empowers the Labour Court to try offences under the Ordinance but exercise of such jurisdiction is subject to other provisions of the Ordinance. This section therefore, imposes limitation on the jurisdiction of the Labour Court to try offences and such limitations are provided under the Ordinance. If no limitations were intended to be placed it was not necessary to open section 64 with the words 'save as provided by the Ordinance'. It would have been sufficient to provide that no Court except the Labour Court will have jurisdiction to try offences under the Ordinance. It is pertinent to note that these opening words ,very added by Act XVI of 1975. To find out the limitations placed on the jurisdiction of Labour Court to try offences under the Ordinance, the aforestated provisions have to be considered and interpreted.
Shaikh Shafiuddin, Director Ahmed Food Industrial Limited Karachi v. Taj All Kundi, General Secretary Labour Union 1980 P L C 685 and Zahirud din Ansari v. Mashoodul Hassan 1984 P L C 538 ref.
(c) Industrial Relations Ordinance (XXIII of 1969)-----
------ Ss. 15. 16, 22-A & 53 - Trial of offences of unfair labour practice-Words "offence" and "case", meaning and scope of-- Trial of offences relating to unfair labour practice, held, was within exclusive jurisdiction of National Industrial Relations Commission. [Words and phrases].
For determining the jurisdiction of the Labour Court for trial of offences relating to unfair labour practice two keywords viz. offence' and case' require special consideration. Words 'offence' and 'case' have been used conveying different meanings. Under section 22-A(8)(f), N. I. R. C. can try offences under section 53 which provides penalty for unfair labour practices. Section 22-A(g) authorises, N. 1. R. C. to deal with cases of unfair labour practices specified in sections 15 and 16. These provisions clearly demonstrate that words 'offence' and 'case' convey different meanings. If the intention of the Legislature was to use the words 'offence' and 'case' for the same meaning then it was not necessary to specify them separately in subsections (8)(f ) and (8)(g). The trial of 'offence' and 'dealing with cases' refer to two different and distinguisable matters. The scheme of the Ordinance clearly distinguishes between 'cases' and 'offence' relating to unfair labour practice as specified in sections 15, 16 and 53. Where any unfair labour practice is committed the aggrieved party is entitled to institute proceeding seeking relief, protection and redress against commission of continuation of unfair labour practice specified in sections 15 and 16. The other remedy available under section 53 is to prosecute the guilty party. All proceedings which are based on violation of sections 15 and 16 but do not seek prosecution under section 53 can be adjudicated by the Labour Court as well as by N. I. R. C. But restriction has been placed on the jurisdiction of the Labour Court in respect of proceedings relating to offences under section 53(1-A) (2), (3) and (4) which fall within the exclusive jurisdiction of N. I. R. C. The Labour Court can try these offences if authorised to do so by a general or special order of N. 1. R. C. as provided by section 53(6). In this provision section 53(6) the word 'case' has been used but it has been qualified by the words 'under this section' (section 53) which refers to penal proceedings provided by this section. Therefore, the trial of offences relating to unfair labour practice is within the exclusive domain and jurisdiction of N. 1. R. C. and the jurisdiction of the Labour Court to try such offences is limited to such cases where it is authorised to do so by a general or special order of the Commission.
(d) Industrial Relations Ordinance (XX(II of 1969)---
-- S. 13 - Meaning and scope of - General description of offences for lodging complaints before Labour Court or National Industrial Relations Commission though enumerated in S. 13 but there is no specification therein that complaints of offences relating to unfair labour practice are to be lodged before Labour Court.
(e) Interpretation of statutes----
-- While interpreting a statute all its provisions should be taken into consideration and endeavour should be made to give a harmonious construction and avoid conflict.
(f )Industrial Relations Ordinance (XXIII of 1969)---
-- S. 13(b) -Constitution of Pakistan (1973), Art. 199-Constitu tional jurisdiction, exercise of - Where Labour Court had no jurisdiction to prosecute for offences relating to unfair labour practice, proceeding initiated by it were declared to be without lawful authority and of no legal effect in constitutional jurisdiction by High Court.
Noor Muhammad for Petitioner.
Bilal Khawaja for Respondents Nos. 2 to 3. Date of hearing : 7th August, 1986.
The petitioners have challenged the proceedings initiated before the Sind Labour Court No. V Karachi, the respondent No. 1 in respect of offence relating to unfair labour practice against the workers. The petitioners are employed as officers in Pakistan Burma Shell which is a public limited company and is engaged in business of storing, and marketing petroleum products in Pakistan. The petitioners Nos. 1 and 2 are working as Installation Manager and Labour Welfare and Administrative Officer respectively at the Company's Establishment at Keamari, .Karachi. The workers of the company had two trade unions namely Karachi Petroleum Workers Unions (KPWU) and Burma Shell Employees Union (BSEU). The first union is a local trade union registered with the Registrar of the Trade Unions Sind with the membership of Company's workers working at Pakistan Burma Shell Installation at Keamari, Karachi. The second trade union is registered with N. 1. R. C. consisting of the membership of company's workers working at the head office, southern office and all the workers of the Company engaged outside the province of Sind K. P. W. U. is the Collective Bargaining Agent of the Company's workers for its establishment at Karachi, and BSEU continues to be the Collective Bargaining Agent of the Company's workers throughout Pakistan except the establishment at Karachi. In May 1981, differences arose among the office-bearers of K.P.W.U. and thereupon the respondent No. 2 organized a third trade union, the respondent No. 3 which according to the petitioners has only 47 members. On or about 14-12-1981 the respondent No. 3 made an application under section 5 of the Industrial Relations Ordinance 1969 to the respondent No. 4 for its registration as a third trade union for the establishment in the Province of Sind. It is alleged that the respondent No. 4 granted the certificate on 7-1-1982 without making any inquiry from the Company as to the number of*workmen employed in its establishment. According to the petitioner this certificate was issued illegally and without any authority and is of no legal effect, as the condition precedent prescribed by section 7(2) (b) of the I. R. O. has not been complied with. On or about 25-1-1981 the respondent No. 2 as General Secretary of respondent No. 3 sent a letter to the General Manager of the Company alleging that the management of the company at Keamari was conniving at in the harassment of workers who had recently joined the respondent No. 3 and that the water supply to the P. B. S. quarters of such workmen has been stopped to pressurize them not to join the respondent No. 3. Alongwith this letter a list of workmen affected by such illegal act was attached; they were (1) Nursy, Sweeper 106 and (2) Mst. Lakshami wife of Durya, Sweeper 107. The Company by its letter dated 2-2-1983 denied that it had any knowledge as to the identity of any members of respondent No. 3 or that it had disconnected water supply of any of its employee or that any of its officers are showing any concern with the choice of these workmen to join whatever union they prefer and that the allegation of unfair labour practice alleged by the respondent No. 3 was baseless. In the meantime Nursy and Mst. Lakshmi both intimated the Company that they have nothing to do with the membership of K.P.W.U. as they have joined respondent No. 3 and their contribution to K.P.W.U. be discontinued. On 12-3-1983 the respondent No. 4 sent a show-cause notice to the Comp any asking for comments and reply to the application dated 15-2-1983 of respondent No. 3 requesting the Director Labour Sind to prosecute the management of the Company for unfair labour practice and alternatively to give permission to the respondent No. 2 to lodge the complaint. The Company sent a reply dated 16-3-1983 asserting that the respondent No. 3 has been irregularly registered and action under section 10 of the 1. R. O. should be taken, that the Company has never been supplied with the names of the Company's workers who have become members of The respondent No. 3, the Company is not aware of the identity of the workers of respond ent No. 3, and finally it was denied that unfair labour practice has been committed. It was further stated that the Company was neither under any obligation to supply water at workers' quarters nor it has disconnected or discontinued water supply at any of its workers' quarters. On 7-6-1983 the petitioners received summons from the respondent No. 1 requiring them to attend before him on 12-6-1983 and to answer the complaint made by the respondent No. 2 alleging commission by the petitioners offences of unfair labour practices under clauses (c) and (d) of section 15 of the I. R. O. and praying that they be sentenced under section 53(1-A) of the I. R. O. 1969. The petitioners then filed this petition challenging the action.
Mr. Noor Muhammad, the learned counsel for the petitioner has contended that the Labour Court has no jurisdiction to try offences relating to unfair labour practice. It has also been contended that as the provisions of Pakistan Essential Services (Maintenance) Act, 1952 have been made applicable to the Company the labour Court has no jurisdiction to prosecute the petitioner. The registration of respondent No. 3 is not proper and legal as it has illegally been granted without any notice to the company and if at all the registration is legal and proper it is only the C. B. A. which can approach the authority to represent the workmen and action taken by respondent No. 3 is not valid in law.
As regards first contention regarding jurisdiction of the Labour Court Mr. Bilal Khawaja, the learned counsel for the respondents Nos. 2 and 3 has contended that this objection has not been taken in the petition, therefore, the petitioner cannot be permitted to raise it. Mr. Bilal Khawaja requested for time to submit written arguments on this objection and the same has been submitted and placed on record. It is correct that no specific plea challenging the jurisdiction of the Labour Court in respect of trial of offences regarding unfair labour practice has been taken but the moment the proceedings were started the petitioner filed this petition challengin its legality. In ground 'F' it has been pleaded that the order and proceed ings are without any lawful authority and of no legal effect. Considering the facts and circumstances of the case and as opportunity was given to the respondent's counsel to submit written arguments and further as the challenge to jurisdiction is based on interpretation of provision of 1. R. O without investigating the facts of the case, in my view, the petitioner is entitled to press this objection. In any event the respondents have not been taken by surprise as opportunity has been given to them to submit written arguments besides the arguments addressed by their counsel.
The learned counsel for the petitioner has referred to two judgments of the learned Labour Appellate Tribunal, Sind, namely, 3haikh, Shafiud din, Director, Ahmed Food Industrial Limited Karachi v Taj Ali Kundi, General Secretary Labour Union (1984 P L C 538), where it was held that the Labour Court has jurisdiction in respect of offences relating to unfair labour practice but if the N.1.R.C. has taken cognizance of any such offence the Labour Court shall not take any action or entertain any application or proceeding in respect thereof unless the case is referred to the Labour Court for disposal. In Zahiruddin Ansari v. Mashoodul Hassan (2), the learned Tribunal held that the trial of offences in respect of unfair labour practice under sections 15 and 16, I. R. O. fall within the exclusive jurisdiction of National Industrial Relations Commission and unless the Commission authorises Labour Court it cannot try the same.
It would be proper to reproduce the relevant provisions of I. R. O.
Section 22-A. .-----------
(2) ---------
(3) ---------
(4)----------
(5) ---------
(6) ---------
(7)----------
(8) The following shall be the functions of the Commission, namely
(a)---------.
(b)---------.
(c)----------.
(d)--------- .
(e) --------.
( f ) to try offences punishable under---
(i) section 53, other than subsections (1) and (5) thereof ; and
(ii) any other sections, in so far as they relate to employers or workers in relation to an industry wise trade union, a federation of such trade unions, a federation at the national level or officers of such union or federation;
(g) to deal with cases of unfair labour practices specified in sections 15 and 16 on the part of employers, workmen, trade unions or either of them or persons acting on behalf of any of them, whether com mitted individually or collectively, in the manner laid down under section 25-A or section 34 or in such other way as may be prescribed and, to take, in such manner as may be prescribed by regulations under section 22-F, measures calculated to prevent an employer or workman from committing an unfair labour practice;
(h)---------
(i)------------
Section 22-A(9). The Commission may, on the application of a party, or of its own motion,-
(a) initiate prosecution, trial or proceedings or take action, with regard to any matter relating to its functions; and
(b) withdraw from a Labour Court any application, proceed ings or appeal relating to unfair labour practice.
Section 22-A(10). For the purpose of dealing with a case of unfair labour practice of which the Commission is seized, the Commission may-----
(a) proceed directly with the case, or
(b) ask the Registrar within whose jurisdiction the case has occurred or is likely to occur to enquire into it and submit a report, or
(c) refer the case to Labour Court within whose jurisdic tion the case has occurred or is likely to occur, either for report or for disposal.
Section 22-A(10-a). The Labour Court to whom the case is so referred shall enquire into it and, if the case was referred to it for report, forward its report thereon to the Commission or, if the case was referred to it for disposal, continue the proceeding and dispose of the case as if the proceedings had originally com menced before it (and grant such relief as the Commission has the power to grant).
Section 22-A(11). Save as provided in subsections 10(a) and (12) no Registrar Labour Court or Tribunal shall take any action, or entertain any application or proceedings, in respect of any matter which falls within the jurisdiction of the Commission.
Section 22-A(12). Nothing in this section shall be deemed to exclude the jurisdiction of Labour Court to entertain cases of unfair labour practices on the part of employers or workmen, whether individually or collectively;
Provided that no Court, including a Labour Court, shall take any action or entertain any application or proceedings in respect of a case of unfair labour practice which is being dealt with by the Commission.
Section 35: . . . . . . .
(2)-------------
(3)-------------.
(4) --------------.
(5) A Labour Court shall,---
(6-a)---------
(b)-----------
(c) try offences under this Ordinance and such other offences under any other law as the Provincial Government may, by notification in the official Gazette, specify in this behalf.
(d) exercise and perform such other powers and functions as are or may be conferred upon or assigned to it by or under this Ordinance or any other law.
Section 53. Peralty for unfair labour practices.-
(1-A)------------------------------
(2)----------------------------
(3) .-------------------------
(4) ,------------------------
(5) ,----------------------
(6) Nothing in this Ordinance shall be deemed to exclude the jurisdic tion of a Labour Court or the Court of a Magistrate to try a case under this section if it is authorised to do so by a general or special order of the Commission.
Section 64. Trial of offences.-Save as provided in this Ordinance, no Court other than a Labour Court or that of a Magistrate of the First Class shall try any offence punishable under this Ordinance.
The functions and jurisdiction of N. I. R. C. have been specified in section 22-A(8) 1. R. O. which inter alia provides that N. 1. R. C. has jurisdiction to try offences punishable under section 53 except mentioned in subsections (1) and (5) and to deal with cases of unfair labour practice specified under sections 15 and 16, I.R.O. N.I.R.C. has power on the application of a party or suo motu to initiate prosecution, trial or proceeding in respect of matters relating to its functions. It can also withdraw any application or proceedings or appeal relating to unfair labour practice or refer such cases to Labour Court for report or disposal. Subsection (11 provides that except the cases referred to the Labour Court under sub section (10-a) and cases of unfair labour practice, the Labour Court shall not entertain or take any action relating to matters falling within the jurisdiction of N. I. R. C. Subsection (12) provides that section 22-A does not debar the Labour Court from entertaining cases of unfair labour practice. In order to determine whether Labour Court has the jurisdiction law to try offences under section 53 one has to look to the other provisions of the I. R. O. Under section 35(5) (c) the Labour Court is empowered to try offences under I. R. O. Section 53 provides penalty for unfair labour practice. Section 53(6) specifies that nothing in the Ordinance shall be deemed to exclude the jurisdiction of the Labour Court to try any case under section 53 if it is authorised to do so by a general or special order of the Commission. The effect of these provisions is that although the Labour Court is empowered to try offences under the Ordinance, limitation has been placed by section 53 to the effect that it can try offences under this section only if authorised by the N. I. R. C. Section 64 provide that except as provided by the Ordinance no Court other than the Labour Court or that of a 1st Class Magistrate shall try offences under the Ordinance. This provision empowers the Labour Court to try offences under the Ordinance but exercise of such jurisdiction is subject to other provisions of the Ordinance. This section, therefore imposes limitation on the jurisdiction of the L. C. to try offences and such limitations are provided under the Ordinance. If no limitations were intended to b placed it was not necessary to open section 64 with the words save a provided by the Ordinance.' It would have been sufficient to provide that no Court except the Labour Court will have jurisdiction to try offence under the Ordinance. It is pertinent to note that these opening words were added by Act XVI of 1975. To find out the limitations placed on the jurisdiction of Labour Court to try offences under the Ordinance, the, aforestated provisions have to be considered and interpreted.
For determining the jurisdiction of the Labour Court for trial o1 offences relating to unfair labour practice two key words viz. offence' and) 'case' require special consideration. In the aforestated provisions word 'offence' and case' have been used conveying different meanings. Under) section 22-A(8) (f ), N. 1. R. C. can try offences under section 53 which provides penalty for unfair labour practices. Section 22-A (g) authorise N. I. R. C. to deal with cases of unfair labour practices specified in section, 15 and 16. These provisions clearly demonstrate that words 'offence' and 'case' convey different meanings. If the intention of the Legislature was to use the words 'offence' and 'case' for the same meaning then it was not necessary to specify them separately in subsections 8(f ) and 8(g). The trial of 'offence' and dealing with cases refer to two different and distinguishable matters. The scheme of the Ordinance clearly distinguishes between 'cases' and 'offence' relating to unfair labour practice as specified in sections 15, 16 and 53. Where any unfair labour practice is committed the aggrieved party is entitled to institute proceeding seeking relief.) protection and redress against commission or continuation of unfair labour practice specified in sections 15 and 16. The other remedy available under section 53 is to prosecute the guilty party. All proceedings which are based on violation of sections 15 and 16 but do not seek prosecution under section 53 can be adjudicated by the Labour Court as well as by N. 1. R. C. But restriction has been placed on the jurisdiction of the Labour Court in respect of proceedings relating to offences under section 53(1-A) (2)(3) and (4) which fall within the exclusive jurisdiction of N. I. R. C. T dh Labour Court can try these offences if authorised to do so by a general or special order of N. I. R. C. as provided by section 53(6). In this provision section 53(6) the word case' has been used but it has been qualified by the words 'under this section' (section 53) which refers to penal proceedings provided by this section. Therefore, the trial of offences relating to unfair labour practice are within the exclusive domain and jurisdiction of N. I. R. C. and the jurisdiction of the Labour Court to try such offence is limited to such cases where it is authorised to do so by a general or special order of the Commission.
While coming to this conclusion I have taken into consideration the provision of section 13 which specifies the powers and functions of the Registrar. It gives a general description of offences for lodging complaint before the Labour Court or N. I. R. C. It does not specify that the complaints in respect of offences relating to unfair labour practice are to be lodged before the Labour Court. The view expressed by me is in accord with the well-recognised principles of interpretation that while interpreting a statute all its provisions should be taken into consideration and endeavour should be made to give a harmonious construction and avoid conflict.
As the Labour Court has no jurisdiction to try offences relating to unfair labour practice unless unauthorised by the Commission it is not necessary to consider other contentions raised by the learned counsel for the petitioner. The permission granted by respondent No. 4 under section 13 (b) to lodge complaint before the respondent No. 1 and the proceeding initiated by it are declared to be without lawful authority and of no legal effect.
The petition is allowed with no order as to costs.
A. A. Petition allowed.
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