' This petition under section 22A(8)(g) of I.R.O., 1969 alongwith an application under Regulation 32(2) National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, was filed by Sajid Hussain (Skilled Worker), Azhar Mahmood and Muhammad Nawaz (Senior Helper), Arshad Mehmood and Mazhar lqbal (Semi-Skilled Worker) employed in the respondent establishment against Messrs Sabro Refrigeration and Air-conditioning Equipment Manufactures, S.A. Brothers (Private) Limited Islamabad through its General Manager and another on 8-9-1998 before this Commission.
2. Briefly stated, the case of the petitioners as set out in the petition is as follows:-- I. That the petitioners are employed as permanent workers in the respondent establishment with effect from the dates shown against their names:-- Sajid Hussain 4-6-1995 Azhar Mahmood 15-5-1993 Muhammad Nawaz13-6-1994 Arshad Mehmood6-4-1993 Mazhar Iqbal 7-4-1993 II. That the petitioners have been performing their duties efficiently and diligently in the General Services Department and due to which the petitioner No,1 was promoted as Skilled Workers, while petitioners Nos.2 and 3 were promoted as Senior Helper and petitioners No,4 and 5 were promoted as Semi-Skilled Workers with effect from 24-5-1997.
III. That workers of the respondents establishment formed ; trade union in the name of Sabro Air- conditioning S.A. Brothers (Pvt.) Ltd. Employees Union, Islamabad and the petitioners Nos.1, 2 and 3 were elected as its General Secretary, Vice-President and Executive Member respectively while the petitioners Nos.4 and 5 are active members of the union. It is further stated that due to their active participation in the formation of trade union, the respondents started victimization of the petitioners to quit their lawful and legitimate trade union activities and also their offices and membership of the union. IV. That being annoyed with the lawful and legitimate trade union activities of the petitioners, the respondent on 13-5-1998 refused to assign any work and confined the petitioners in a separate room and put a Security Guard on duty over them and they were forced to dissolve their union. Against this malpractice of the respondents, the petitioners on 16-5- 1998 wrote letters to the Assistant Commissioner, Islamabad, National Industrial Relations Commission and also to the Chairman, Khidmat Committee, Islamabad mentioning therein that the respondent have confined six office-bearers of the union during working hours in a separate room and pressurised them to quit the union. V. That in the General Services Department, about 16 workers were performing maintenance of the whole Factory. But by removing the office-bearers and active members of the union from the said department confined them in a separate room during working hours under strict security of a Gunman and two Chowkidars, the respondents have created a terror in the Factory. The petitioners were not assigned any work after formation of the union and the respondents carried out the work through contract workers and other persons employed in the General Services Department while most of them are even junior to the petitioners.
VI. That on 7-9-1998, the respondents as a measure of unfair labour practice, stopped all the petitioners at the main gate of the Factory without any written order. Though the petitioners requested for supply of written order, but the respondents refused to supply the same. It is further submitted that action of the respondents is illegal, mala fide, bad in law and constitutes act of unfair labour practice under section 15 of I.R.O., 1969 and also against the order dated 9-3-1998 passed by the then learned. Member, Mr. Abdul Rashid Khan in Case No,4A(25)/98 directing the parties to maintain status quo and prayed that the respondents be directed not to dismiss, discharge, terminate or remove the petitioners from service or refuse their entry in the Factory by stopping them on the gate and if any termination order in respect of the petitioners is passed the same be set aside.
3. This petition alongwith application under Regulation 32(2) of the National Industrial Relations Commission (Procedure and Functions) Regulations, 1973 was placed before the then learned Member Mr. Abdul Rashid Khan, who after hearing representative of the petitioners, directed the respondents to file their written statement and also reply to the stay application.
4. The respondents while filing their written statement and reply to the stay application have resisted and vehemently opposed the petition by raising certain legal objections regarding maintainability of the petition. On merits the respondents also controverted the allegations made by the petitioners.,
5. In their written statement/parawise comments, the respondents have denied the allegations and contended that the petitioners have concealed material facts. It is contended that services of the petitioners had already been terminated vide order dated 5-9-1998. They had tried to serve the said termination orders upon the petitioners on the same day but they refused to receive the same. The respondents therefore, sent the said termination orders dated 5-9-1998 through Courier Service and also through Registered Post A.D. On 7-9-1998. It is further submitted that the management had decided to re-organise and rationalize the load work and accordingly the General Services Department was abolished and all the employees including the petitioners were declared surplus, consequently their services were terminated. Since the said termination orders have already been implemented, therefore, the petition is not maintainable and liable to be dismissed. In para. 5 of their written-statement, the respondents have not only denied allegations of the petitioners but also contended that:- "The assertion of the petitioners is not correct. On the other hand the petitioners have taken law into their hands, on the basis of which a contempt application and a case under section 22-A(8)(g) of I.R.O., 1969 has been filed by the management".
' They emphatically denied all allegations and prayed that the petition be dismissed.
6. It may be submitted that the instant petition was filed by five petitioners but during hearing of the case on 1-2-2002, representative of the petitioners submitted that since petitioners Nos.2, 4 and 5 namely Azhar Mahmood, Arshad Mehmood and Mazhar Iqbal are not interested to pursue their case, therefore, their names may be struck off from the list of the petitioners. Learned counsel for the respondents has supported prayer of the representative of the petitioners and subniitted that since the said petitioners have already received all their legal dues and they have no claim whatsoever against the respondents, therefore, the respondents have got no objection if names of the petitioners Nos.2, 4 and 5 are struck off. In view of the submissions of the representative of the petitioners and learned counsel for the respondents, names of the aforesaid petitioners were struck out.
7. It may also be submitted that during hearing of the case on 1-2-2002, representative of the petitioners submitted that in order to avoid delay, the stay application dated 8th September, 1998 (pages 28 to 30 of the file) may be disposed of as unpressed and the case he fixed for evidence. In view of his submission, the said stay application was disposed of unpressed and the petitioners Nos.1 and 3 were directed to file their affidavits in evidence.
8. In terms of the aforesaid order, both the parties adduced their evidence. The petitioners Nos.1 and 3 have filed their affidavits in evidence in support of their contention. They were cross- examined by the learned counsel for the respondents. While the respondents in support of their version produced one witness namely Saeed Tabassum, Assistant Manager of the respondent Company who has filed his affidavit in evidence. He was cross-examined by Malik Meharban representative of the petitioners.
9. In their affidavits in evidence both the petitioners/deponents have corroborated the contents of their petition. In their affidavits they have stated that since the deponents are Vice-President and General Secretary of the union and have been actively participating in the formation of their union, the respondents started their victimization and they were severally persuaded to quit their offices and membership of the union. In paras. 5 and 7 of their affidavits they have deposed that:-- "having been displeased with the lawful and legitimate trade union activities of the deponents, the respondents on 15-5-1998 shifted the office-bearers and active members from their duty place and refused to give them work. The deponents were placed in a separate room and put a Gunman over them and they were forced to close down their union. Against this malpractice and unfair labour practice a letter was sent to the Assistant Commissioner, Islamabad, copies of which were endorsed to all concerned including this Commission. The matter was again reported to the Assistant Commissioner, Islamabad vide letter dated 15-6-1998 Annexure-C alongwith copies to all concerned".
"At that time in the General Services Department about 16 workers were performing maintenance of the whole of the Factory. But after withdrawing the office-bearers and active members of the union and by putting them in a closed room during duty hours under a security watch of a Gunman and 2 Chowkidars, the respondents created terror in the Factory and also committed acts of unfair labour practice".
10. In nutshell, the deponents have tried to establish elements of unfair labour practice by stating that termination of their services on account of their trade union activities amounts to an act of unfair labour practice as envisaged under section 15 of the I.R.O., 1969.
11. In his cross-examination the petitioners' witness Muhammad Nawaz has stated that the union was registered on 10-1-1998, while, the petitioners were terminated on 7-9-1998. The witness has further stated that though he was working very hard but due to trade union activities he has been terminated from service. He has further stated that he has filed this petition after 2/3 days of his termination. He further Stated that the petitioners Nos.1, 2, 4 and 5 have received their dues. He further stated that the General Services Department has not been closed however at the time of his termination, about 5/6 workers were also terminated. While in his cross-examination the other witness Sajid Hussain stated that " I was terminated on 7-9-1998. In the present petition there are five petitioners, out of these five petitioners three petitioners have received their final account.....
The workers mentioned in para. 7 of the affidavit in evidence are working in General Services.
Department but I do not know Mussarat Hussain Shah at Serial No,13 of the said para. I do not know whether the workers mentioned in para. 7 are presently working in General Services Department however, earlier they were in the General Services Department "
' ...... It is correct that I have lodged a complaint before the Chairman Khidmat Committee, Islamabad only. It is correct that Muhammad Sohail Mlik Vice-President and Azhar Mahmood have received their final accounts"
12. On behalf of the respondents, the witness Saeed Tabassum has asserted in his affidavit in evidence that services of the petitioners were terminated as their services were no longer required because the Department was reorganized due to reduction in the production and the employees were burden upon the deponent's establishment. He further asserted that the petitioners have annexed a list of workers alongwith the petition, but as a matter of fact, none of the said workers, work in the Gener al Services Department as they were working in different departments and they have since been terminated from their services in PLC (Labour) the process of re-organization of the General Services Department. He further asserted that most of the petitioners have settled their accounts after filing the present petition and they are no more interested to pursue their case against the deponent's, establishment. It is further asserted that the work of maintenance carried out in the General Services Department is now carried out by the workers of the concerned shops.
In his cross-examination he stated that "..... It is correct that the respondent management have given termination letters to Sajid Hussain and Muhammad Nawaz, petitioners. The management had tried to give termination letter to the petitioners Nos.1 and 3 but when they refused to receive the same we have sent the said termination letters through courier/registered post. It is correct that registered post receipts are not legible. It is incorrect that the said courier receipts and postal receipts are forged... I have not attached the receipt of acknowledgement-due with my affidavit in evidence........The work of maintenance is carried out in General Services Department. Voluntarily states that General Services Department has now been abolished. Presently the maintenance work is carried out by the workers of all the concerned shops. I have not mentioned in my affidavit in evidence in respect of closure of the General Services Department. Voluntarily states that I have mentioned in paras. 4 and 10 of my affidavit regarding re-organization of the General Services Department."
13. Arguments were heard. Representative of the petitioners has reiterated the petitioners stand taken in their petition. While justifying filing of the instant petition under section 22A(8)(g) of I.R.O., 1969 before the Commission on the ground of unfair labour practice, representative of the petitioners has contended that termination of services of the petitioners was due to trade union activities of the petitioners. He further contended that even on merits removal of the petitioners from service was illegal, mala fide and bad in law. The plea of abolition of General Services Department is totally incorrect as about six permanent workers and six contract workers are working in the said Department. He further contended that the petitioners were pressurised by the respondents to resign from the union and also close down all their trade union activities but when they refused to do so, the respondents by exercising undue pressure upon the petitioners stopped all the petitioners at the main gate of the Factory without any written order. They were illegally refused duty without any reason which is violative of Standing Order 12(5) of the West Pakistan Industrial and Commercial Employment (Standing Order) Ordinance, 1968. He contended that the petitioners Nos.1 and 3 are the General Secretary and Executive Member of the Union and they were continuously pressurised to quit their union, but when the respondent failed in their efforts, they terminated the services of the petitioners. He further contended that the respondents have also challenged registration of the petitioners union in Writ Petition No,1591 of 1998 before the Hon'ble Lahore High Court, Rawalpindi Bench which was dismissed with costs of Rs,20,000. He further submitted that the respondents are hostile to the petitioners union with the result that their actions are intended to bring the union into disrepute and harass its office-bearers and members. He further contended that termination of the petitioners is ultra vires and tantamounts to unfair labour practice as the senior most workers were terminated and the juniors were retained in service and that the said Department is still in operation. In support of his contention he placed reliance on the judgments reported in 1974 PLC 225 and 1990 PLC 385.
14. On the other hand learned counsel for the respondents has not only denied all allegations, but also raised an objection regarding maintainability of the petition and jurisdiction of the Commission on the ground that the petitioners have failed to make out a case of unfair labour practice as defined under section 15 of I.R.O., 1969.
15. I would therefore, like to discuss the evidence and the averments made by the parties in this regard. As stated earlier that in order to prove that their case falls within the scope of section 22- A(8)(g) read with section 15 of I.R.O., 1969, the petitioners have made an allegation of their victimization on account of their trade union activities. In their petition as well as in their affidavits, the petitioners have submitted that they are the office-bearers of Sabro Air-conditioning S.A.
Brothers (Pvt.) Ltd Employees Union, Islamabad and due to their lawful trade union activities, they have been victimized which amounts to unfair labour practice. Contentions of the respondents' counsel in rebuttal to this assertion of the petitioners were that the petitioners have failed to point out any specific trade union activity on their part. He further contended that services of the petitioners were terminated as they were declarcd surplus due to abolition of the General Services Department and not on account of their trade union activities. He further contended that the petitioners have admitted in their cross-examination that their union was registered on 10-1-1998, while they were terminated on 7-9-1998,but they have failed to quote any specific instance of unfair labour practice on the part of the respondents except an allegation that on 15-5-1998, the petitioners were put in solitary-confinement in a separate room during working hours and they had made complaints to the Assistant Commissioner and other Agencies including the Commission, but these allegations were never brought for adjudication before any Court of law or any competent forum and were used as tactics to pressurise and harass the respondents. He further contended that the petitioners have neither mentioned the name of the Chowkidar or the Gunman in their petition as well as in their affidavits nor they produced any independent witness in support of their assertion. He further contended that due to re-organization and rationalization of the load- works, the General Services Department was abolished and all the employees including the petitioners were declared surplus and consequently their services were terminated. He further contended that the respondents establishment is a business oriented organization and had no option bid resort to retrench the surplus workers strictly in conformity with the requirement of law and in this process of retrenchment there was no element4of unfair labour practice. About services of the terminated letters dated 5-9-1998, he argued that the Management tried to serve the termination orders upon the petitioners on the same day, but when they refused to receive the same, the said termination orders were sent through registered post A/D and courier-service on 7- 9-1998. He further contended that the instant petition was filed by five petitioners but during the proceedings the petitioners Nos.2, 4 and 5 while realizing their fault have not only received their legal dues but also requested that they are no more interested to pursue their case and therefore, their names may be struck-off. He further contended that since the petitioners have failed to make out a case of unfair labour practice on the part of the respondents, therefore, this Commission has no jurisdiction to interfere into the matter because jurisdiction of the Commission is restricted and limited only to the cases based on allegations of unfair labour practice. In support of his contention he referred 1987 PLC (C.S.) 447 and 1996 PLC 86.
16. I have gone through the pleadings of the parties and their respective version and also examined record of the case minutely and have come to the conclusion that the petitioners have miserably failed to make out a case of unfair labour practice. It would be relevant to mention here that although all the workers employed in the General Services Department have been terminated but only five petitioners had filed this petition namely Sajid Hussain, Azhar Mahmood and Muhammad Nawaz (Petitioners Nos.1 to 3) who claim to be General Secretary, Vice-President and Executive Member respectively. While Arshad Mahmood and Mazhar Iqbal petitioners Nos.4 and 5 are ordinary members of the union. It may be pertinent to mention here that an event of much importance which cannot be lightly ignored is that during the course of proceedings of this case, petitioners Nos.2, 4 and 5 namely Azhar Mahmood, Arshad Mehmood and Mazhar Iqbal sought permission to withdraw their names from the petition as they were no more interested in pursuing the petition. It was also asserted that they. Had received all their dues. Out of these three petitioners, as stated above, Mr. Azhar Mahmood, petitioner No,2 was the Vice-President of the union. Withdrawal of the petition by the aforesaid three petitioners leads support to the version of the respondent Management that services of the workers in the General Services Department were terminated due to re-organisation of the establishment. It may be further stated that the petition was filed on 8-9-1998 and the petitioner No,1 namely Sajid Hussain in his cross-examination stated that services of the petitioners were terminated on 7-9-1998. He also stated that he did not know whether or not the workers mentioned in para. 7 of the affidavit were presently working in the General Services Department. While petitioner No,3 Muhammad Nawaz admitted in his cross examination that their services were terminated two or three days before the petition was filed. In this way the version of the respondent that the General Services Department was closed on 5-9- 1998 is proved to be true. It also appears to be true that the termination letters were offered to the petitioners on 5-9-1998 but they refused to accept the same and consequently their termination letter were sent through courier/registered post at their home addresses. The fact that services of the petitioners were terminated before filing the petition is also corroborated from the statement of the petitioner, Muhammad Nawaz (petitioner No,3). In reply to a question in his cross-examination he has admitted that his services were terminated cn 7-9-1998 while the petition was filed on 8-9- 1998. The witness also admits that the petition was filed in the month of September, 1998 after his termination. In cross-examination he has admitted that it was correct that petitioners Nos.1, 2, 4 and 5 have received their dues. If so, the petition has become infructuous on this ground.
17. Regarding the allegation that the petitioners and other office-bearers of the union were confined in a room and a guard was posted therein, learned counsel for the respondent has contended that the petitioners have not produced any independent witness to prove this incident as no such petition or complaint was'ever filed in any Court to seek redress for the prevention of occurrence of such serious incident. It is pertinent to mention here that the most important feature of the prayer in the petition is that the petitioners have not prayed for preventing the respondents from committing any act of unfair labour practice. Since there is no prayer for preventing the respondents or taking action for the acts of unfair labour practice in the prayer, the petition, therefore, does not fall within the mischief of section 15 of the I.R.O., 1969. In this view of the matter I could not bring myself to agree with the petitioners that their case is based on allegations of unfair labour practice. I find that the petitioners failed in proving that on account of their trade union activities, the impugned termination orders were issued by way of unfair labour practice as defined under section 15 of I.R.O., 1969, but without any cogent reason they have repeated their allegations of being victimized due to trade union activities. Mere wild and bald allegation of unfair labour practice is not sufficient to prove victimization and make amenable for interference by the Commission. In the circumstances the relief prayed for by the petitioners cannot he granted.
According to law as laid down by the Hon'ble Supreme Court of Pakistan in the case of Iftikhar Ahmed PLD 1988 SC 53 followed in 1991 PLC 876, 1988 PLC 923, 1988 PLC 419 and 1994 PLC 31, this Commission has jurisdiction to interfere only if a case falls within the ambit of section 15 of I.R.O.
1969. No other victimization even if proved, is actionable by this Commission in exercise of jurisdiction cited by section 22-A(8)(g) of I.R.O.
1969. In this regard it would be Appropriate to quote the dictum of a Full Bench of this Commission in the appeal case of Nazir Muhammad-General Manager TIP Haripur and another v. Ghulam Aghar and 4 others 1988 PLC 923 at page 926 which places its reliance on a judgment of Honourable Supreme Court: ' The Commission's jurisdiction will extend Snot because of illegality or irregularity in the action taken by the Management but upon evidence, that such action impugned upon the provision of section 15 of I.R.O. In a recent judgment in. Iftikhar Ahmad, Vice-President, National Bank of Pakistan and others (Civil Appeal No,221 of 1985, PLD 1988 SC 53 and other appeals), the Supreme Court observed:-- ' It will, therefore, appear that the cases which the Benches are empowered to hear under the clause must have an element of unfair labour practice in them; it does not encompass cases where no allegation of unfair labour practice is made. It may be mentioned that sections 15 and 16 of the Ordinance set out instance of unfair labour practice on the part of the employer as well as workmen. It is, therefore, not right to construe the clause in question as conferring a general jurisdiction upon the Benches to entertain all kinds of grievance petitions even though the may not be relatable to unfair labour practice...'."
' Another judgment on the same subject was also delivered in the case of National Motors Ltd, v.
Muhammad Hanif 1987 PLC 547 at page 550 when Mr, Justice (Rtd.) M.S. Qureshi, the then learned Chairman of this Commission, delivering the judgment for the Full Bench of the National Industrial Relations Commission, laid down the duties and functions of the Commission in the matters arising out of disciplinary action against the workers as follows:-- "It is necessary to state clearly the duties and functions of this Commission in matters arising out of disciplinary action against workers.' In such matter the National Industrial Relations Commission does not sit in judgment over the action of Management against workers as an appellate forum.
The Commission is not concerned with the deficiency if any, of law or fact in the action and will not set aside the Management's decision merely upon a finding of error in the procedure adopted or of want of sufficiency of evidence upon which the action proceeds. Nor will the Commission interfere only because the action requires correction. That may be the functions of the forum acting under section 25-A of the I.R.O., 1969. The Commission's jurisdiction is and as has rightly been invoked in this case, under clause (g) of subsection (8) of section 22-A of the I.R.O., 1969, upon allegation of unfair labour practice. In proceedings under this clause, the Commission has to examine, if the Management was motivated by any of the considerations enumerated in section 15(1). For this purpose, the Commission may also scrutinize, if the management's action was based upon no evidence or upon misreading of evidence or was perverse to the evidence or was in colourable exercise of power. For, that, if established will detract from the bona fide of the Management and may lend credibility to the allegation of unfair act. But by itself, this will not be sufficient for reaching of findings of unfair act unless one or more of the ingredients of section 15, which sets out what constitutes unfair labour practice on the part of employer, stands proved independently by factual or circumstantial evidence. The examination of the Management's action is therefore, only collateral and a mere finding against the correctness of the action will not perse establish unfair labour practice within the meaning of section 15."
18. As discussed above, on a minute examination of the pleadings of the parties and their respective versions, I find that the petitioners failed in proving that on account of their trade union activities their services were terminated by way of unfair labour practice as defined under section 15 of I.R.O., 1969. They have failed to quote any specific instance of lawful trade union activities, but have repeated their allegations of being victimized due to trade union activities. Mere bald allegations of unfair labour practice are not sufficient to prove victimization and make amenable for interference by the Commission, in the circumstances the relief prayed for cannot he granted.
19. Upshot of the above discussion is that the petitioners failed in proving unfair labour practice on the part of the respondents, I therefore, have no hesitation in holding that this Commission have no jurisdiction to deal with this petition which is hereby dismissed. However, the petitioners if so desire may file a petition before the competent forum for redress of their grievance. Parties are directed to bear their own costs. File be consigned to record.