Sunday, 19 January 2014

CDA V. NIRC (Appeal Accepted by Islamabad High Court)

PLJ 2012 Islamabad 71
Present: Shaukat Aziz Siddiqui, J.
CAPITAL DEVELOPMENT AUTHORITY--Petitioner
versus
NATIONAL INDUSTRIAL RELATION COMMISSION and another--Respondents
W.P. No. 3516 of 2011, decided on 30.12.2011.
Industrial Relations Ordinance, 2011--
----Ss. 31 & 33--Civil Procedure Code, (V of 1908), O.XXXIX, Rr. 1 & 2--Constitution of Pakistan, 1973--Art. 199--Entitlement to receive vacant possession on completion of grace period--Jurisdiction assumed by NIRC was not vested--No material of unfair labour practice was provided--Object to procure restraining order to keep possession--Discretion exercised arbitrarily and without unfolding sleeves--Question of--Whether jurisdiction was vested with member--Father of respondent was employed with CDA and quarter was allotted--When grace period of six months was about to expire, he filed suit for permanent injunction before Civil Court--Stay was granted but was not extended--Validity--Once matter was brought into notice of member that father of petitioner, pursuing matter before member approached Civil Court, got initial relief, but unable to sustain and ultimately appealed before appellate Court which was dismissed--His son had no right or entitlement to keep possession but it was a matter of great concern that member NIRC showed disrespect to orders passed by Courts of competent jurisdiction and became privy to frustrate those orders and such act of NIRC was nothing but an arbitrary exercise of authority, an abuse of process of law, shocking, perverse unprecedented and without jurisdiction--NIRC had failed to adhere to provisions of IRO 2011 itself as most individual grievance of petitioner would have only be addressed, if same was falling within provisions of S. 33 of IRO.          [P. 74] A
Constitutional Jurisdiction--
----High Court in constitutional jurisdiction was vested with power to undo any action, which was result of an arbitrary exercise of authority order passed without jurisdiction and quash the proceedings which on face of it aimed to frustrate judicial proceedings and order passed there under.      [P. 74] B
Civil Procedure Code, 1908 (V of 1908)--
----O. XXXIX, Rr. 1 & 2--Constitution of Pakistan, 1973--Art. 199--Status quo with regard to residential quarter--Father of respondent was allotted quarter by CDA--When grace period was about to expire, a suit for permanent injunction was filed before Civil Court--Stay order was not extended--There is no cavil to preposition that ordinarily, against an interim order superior Courts show reluctance to interfere, but when order smacking mala fide, arbitrary, caprcious, unprecedented and without jurisdiction, it become abundant duty of High Court to exercise constitutional jurisdiction.            [P. 75] C
Mr. Muhammad Khalid Zaman, Advocate for Petitioner.
Mr. Amjad Hafeez Amjad, Advocate for Respondents.
Date of hearing: 30.12.2011.
Judgment
Petitioner, Capital Development Authority (CDA) invoked the constitutional jurisdiction of this Court, by way of filing instant writ petition, praying as under:--
"In the above said circumstances it is prayed that the Honourable Court kindly declare the impugned order dated 17.10.2011, passed by Respondent No. 1, as illegal, void, capricious, whimsical, mala fide and without any law full authority. In alternative this Honourable Court may please direct the Respondent No. 1 to dispose of the Petition No. 4A (33)/2011 as early as possible without further delay".
"Any other relief which this Honourable Court deems fit may also be awarded in the interest of justice and fair play".
2.  Brief facts as glean out from the petition and annexed documents are that one Barkat Ullah s/o Jamal Din real father of Respondent No. 2, Qadir Qureshi, was employed with CDA and was allotted Quarter No. 259-C, G-6/1-4, Islamabad, in the year 1994. He retired on 14.1.2011 on superannuation. He made request for permission to keep the allotted accommodation for statutory period of 06 months, that was allowed and period ended on 13.7.2011. When grace period of 06 months was about to expire, he filed suit for permanent injunction before learned Civil Judge, Islamabad, on 8.7.2011. Cause of action in the plaint was disclosed as great apprehension of cancellation or re-calling the extension unilaterally, illegally and unlawfully (Para 3 of the plaint). The learned Civil Judge granted stay order till 21.7.2011 which was not extended on the said date. Feeling aggrieved an appeal was preferred which was dismissed on 14.10.2011. On 17.10.2011, Respondent No.2, approached National Industrial Relation Commission (N.I.R.C) by filing petition u/S. 31 of the Industrial Relation Ordinance (IRO-2011) for committing unfairlabour practice by CDA with the following prayer:
"It is therefore, respectfully prayed that this Honourable Court may kindly be pleased to pass an order directing the respondent not to commit any act of unfair labourpractice by dismissal, discharge, removal, termination or cause injury to the employment of the petitioner by way of dispossession of the petitioner from Quarter No. 259-C, St.88, G-6/1-4, Islamabad. It is further prayed that the respondent may be directed to treat the petitioner as permanent employee of the respondent establishment in accordance with law.
3.  On the same date petition was placed before Mr. Ghulam Nabi Deeshak, learned Member N.I.R.C, who showed indulgence by passing the following order:
This is a petition under Section 31 of the Industrial Relations Ordinance, 2011, filed by the petitioner inter alia alleging unfair labour practice on the part of the respondent. The petitioner also filed an application for grant of stay alongwith affidavit. Heard the petitioner at some quite length. The contentions raised by him needs consideration. Admit. Notice. In the meanwhile status quo to be maintained in respect of Quarter No. 259-C, Street No. 88, G-6/1-4, Islamabad. To come up on 27.12.2011 for filing written reply on the main petition & stay application.
4.  CDA, moved an application for early hearing but matter kept on lingering on and now is fixed for 18.1.2012. The matter did not end here, as one Tanvir Ahmed s/oMashoq appeared on the surface by filing civil suit on 15.12.2011 by claiming that being (                  ) he is entitled for allotment and maintaining the possession. Learned Civil Judge vide order dated 19.12.2011, refused to grant interim injunction to him.
5.  Learned counsel for the petitioner submits that entire family, with mala fide intention, ulterior motive, has been playing with the process of law. The quarter is already allotted to Ms. Juveria Maqbool on the date of retirement of Barkat Ullah i.e. 14.1.2011, who was entitled to receive the vacant possession atleast, on completion of grace period on 13.7.2011. But, despite passing of almost one year possession has not yet been delivered. The learned counsel further submits that jurisdiction assumed by the Respondent No. 1 was not vested in him, as no material of unfair labour practice was provided. The whole object was to procure a restraining order to keep the possession, in which Respondent No. 2, succeeded.
6.  On the other hand learned counsel for Respondent No. 2 submits that this Court lacks jurisdiction to interfere in a matter, which is subjudice before a competent forum. He further submits that unfair labour practice is a mixed question of law and facts to be determined by N.I.R.C, after recording evidence. He adds that denial of allotment to Respondent No. 2 comes within the definition of "unfair labour practice", as Respondent No. 2 despite being on daily wages, entitled to keep the possession of a quarter, which earlier, was allotted and possessed by his father. Learned counsel further contends that petitioner had an alternate remedy, therefore, constitutional petition is not maintainable. He placed reliance 1986 SCMR 959, 1987 SCMR 396, 1989 SCMR 1892 & PLD 1977 LHR 368.
I have heard the learned counsels for the parties and minutely perused the record relied by both the contesting parties.
7.  By entertaining the petition of Respondent No. 2, learned Member N.I.R.C, passed first restraining order which was to hold field, for 71 days. This period, itself, shows that discretion exercised arbitrarily and without unfolding the sleeves to find whether jurisdiction was vested with the learned Member or not?. Once matter was brought into the notice of learned Member that father of petitioner earlier, pursuing the matter before the learned Member; approached the Civil Court, got initial relief, but unable to sustain, and ultimately appealed before the appellate Court which was dismissed on 14.10.2011. His son (petitioner before N.I.R.C) had no right or entitlement to keep the possession but it is a matter of great concern that learned Member N.I.R.C, showed disrespect to orders passed by Courts of competent jurisdiction and became privy to frustrate those orders and this act of the learned Member N.I.R.C is nothing but an arbitrary exercise of authority, an abuse of process of law, shocking, perverse, unprecedented and without jurisdiction. To my mind learned Member N.I.R.C. failed to adhere to the provisions of IRO-2011 itself as at the most individual grievance of petitioner before him, could have only be addressed, if same was falling within the provisions of Section 33 of IRO-2011.
8.  This Court in the constitutional jurisdiction is vested with power to undo any action, which is result of an arbitrary exercise of authority, order passed without jurisdiction and quash the proceedings which on face of it aimed to frustrate the judicial proceedings and order passed  there  under.  Impugned  order  is a glaring example of travelling beyond jurisdiction and to put CDA through the hoop. There is no cavil to the preposition that ordinarily, against an interim order Superior Courts show reluctance to interfere, but when order smacking mala fide, arbitrary, capricious, unprecedented and without jurisdiction, it becomes abundant duty of the High Court to exercise constitutional jurisdiction. In this regard guidance and wisdom has been sought from; Muhammad Zaman Khan's case (1997 SCMR 1508) andWaqar Ali's case (PLD 2011 SC 181). Authorities relied by the learned counsel for Respondent No. 2 are distinguishable in facts and circumstances of the case.
9.  In this view of the matter order dated 17.10.2011 to the extent of status-quo with regard to quarter No. 259-C, Street No. 88, G-6/1-4, Islamabad is hereby quashed/set aside. Petitioner is at liberty to further process in the matter in accordance with law.
(R.A.)  Petition accepted

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