This petition under section 22-A(8)(g) of I.R.O., 1969 accompanied with an application under Regulation 32(2) of N.I.R.C. (Procedure and Functions) Regulations 1973, read with section151 C.P.C.
Was filed by Sajid Mehmood, Radio Operator Oil and Gas Development Company Limited Head Office, Islamabad and 18 others against the Managing Director Oil and Gas Development Company Limited and another on 7-7-2001 before this Commission with the prayer that the respondents be directed not to commit unfair labour practice and not to recruit out-siders as Radio Operators against the 23 vacancies of Radio Operators exist in the respondents-establishment and consider the petitioners for appointment and appoint them on permanent basis against the aforesaid vacancies.
2. Brief facts leading to this petition are that the respondents-company on 14-2-2000 advertised 15 posts of Radio Operator, prescribing maximum age limit of 30 years amongst other qualifications.
Agitating against the said advertisement, the petitioners who were already working in the respondents-Company as Radio Operators on work-charge basis have filed this petition claiming that they are working as Radio Operators for the last 5 .To 10 years and that all of them are ex- servicemen and are entitled to he considered for appointment against the posts so advertised by the respondents.
3. The petitioners further claim that in terms of the statutory notification issued by the Establishment Division, Government of Pakistan dated 17-8-2000 published in the Gazette of Pakistan on 21-8-2000 and as adopted by the respondents vide their Letter No,AAO-103-15 dated 14-7-2001, relaxation in upper age limit in case of ex-servicemen for initial appointment in the respondent's Company has been raised from 10 to 15 years and thus they are entitled to get benefit of the said relaxation.
4. It is also contended that upper age limit fixed by the respondents was 35 years at the time of appointment of the petitioners as Radio Operators, while for the posts of Radio Operators so advertised, upper age limit has been prescribed as 30 years. It is further submitted that this act of prescribing limit of 30 years age is a deliberate act on the part of the respondents with a sole aim to deprive the petitioners to apply for the newly-created posts on regular basis because being active members of their union which is CBA they are convassing in favour of their union in the referendum which is under process before the N.I.R.C. And the respondents are against their union and do not like their activities.
5. The respondents while filing their written statement have repudiated the averments made in the petition by raising inter alia some legal objections, that the instant petition is not maintainable as the petition in its present form is devoid of an element of unfair labour practice and therefore in view of section 2- of the Federal Service Tribunal Act, 1973, this Commission has got no jurisdiction to adjudicate upon the matter in controversy. On merits the respondents controverted the allegations made by the petitioners. The main contentions of the respondents are as under:--
(a) The petition in its present form is devoid of an element of unfair labour practice. Section 22- A(8)(g), 22-B(3)(a) & 15 of I.R.O., 1969 are inextricably linked with one another and in order to reach a rational conclusion have to be read together. Section 22-B(3)(a) of I.R.O., 1969 presupposes the existence of a right guaranteed or secured under any law, award or settlement, but the petitioners have failed to show that they have come to the Commission for enforcement of rights guaranteed to them under any law, settlement or an award as required under section 22-B(3)(a) of I.R.O., 1969.
(b) The Notification dated 17-8-2000 as adopted by the respondents (sic) on 14-7-2001 cannot be put into effect from a previous date i,e, the date of advetisement i,e, 14-2-2000 through which 15 posts of Radio Operators were advertised.
(c) The petitioners are over-age despite liberal relaxation of age given to them by the respondent's Company. However, long may be the employment of the petitioners as work-charge such employees cannot be taken to be permanent workmen.
(d) In Writ Petition No,646 of 1999 pending adjudication in the Honourable Lahore High Court, Rawalpindi Bench, Rawalpindi filed by the respondents, the issue of regularization of casual/work- charge employees is pending judicial scrutiny, hence the petitioners are excluded from invoking jurisdiction of the Commission.
(e) It is further asserted that interest of the petitioners in respect of their employment will not be adversely affected in any manner and they will continue to remain in service as work-charge employees.
6. Both the parties were asked to file their affidavit in evidence. All the petitioners have filed their affidavit in evidence and the petitioners Nos.l. 2, 8 and 12 were cross-examined by the learned counsel for the respondents. Similarly the respondents in support of their version produced one witness namely Abdul Mateen Ahmed, Chief Personal Officer, who tiled his affidavit in evidence and he was cross-examined by the learned Counsel for the petitioners. In their affidavit in evidence, the petitioners have alleged that they are employed as Radio Operators in the respondents- establishment for the last 5-10 years on work-charge basis and all of them are ex-servicement and therefore they are entitled to relaxation of Upper-age limit of 15 years at the time of recruitment as notified by the Establishment Division, Government of Pakistan vide Notification dated 17-8-2000.
Published in the Gazette of Pakistan on 21-8-2000 and as adopted by the respondents-Company vide their Latter dated 14-7-2001, but since they are members of the former CBA Union, therefore, due to their trade union activities, they are being victimised and refused employment as permanent Radio Operators. It is further asserted that in order to deprive the petitioners to apply for the newly-created posts of Radio Operators on regular basis, the respondents management have deliberately a prescribed the age limit as 30 years. While in his affidavit the respondents witness Abdul Mateen Ahmed has admitted that on release from the Army, the petitioners were engaged from time to time on work-charge basis as Radio Operators during the period from 1992- 1997. It is further asserted that the Government of Pakistan Cabinet Sect. (Establishment Division) vide their O.M./No,9/2/93-R-5 dated 15-4-1993 allowed relaxation in upper age limit of ten years or the number of years actually served in the Armed Forces of Pakistan whichever is less in respect of released or retired officers/personnel of Armed Forces of Pakistan. This Notification was adopted by the then Oil and Gas Development Corporation vide their Letter No,AAO 103-15 dated 5th May, 1993 and consequently the aforesaid relaxation was given to the nineteen petitioners. It is further asserted that the respondents-management advertised fifteen positions of Radio Operators on 14- 2-2000 to be filled in on contract/regular basis and this advertisement was not intended to disturb in any manner the work charged positions held by the nineteen petitioners. The upper age limit prescribed for Radio Operator was 30 years. The last date for receipt of application was 15-3-2002 and in terms of the said advertisement, eligible persons both unemployed/employed could apply for the post of Radio Operator. It is further asserted that 550 candidates had applied. Out of them 79 were found eligible and they took the written test followed by interview and as a result thereof 23 candidates were found fit, but despite the fact that the nineteen petitioners were given ten years relaxation on the basis of the aforesaid Cabinet Sect. Notification dated 15-4-1993 as adopted by the respondents-Company, the petitioners were considered not eligible as they were found overage.
7. In his cross-examination the respondents witness Abdul Mateen Ahmed stated that the "Memorandum of Settlement" or executed between the respondents-management and the CBA union on 21-9-2002 (RW-1/I) is correct. He also admitted that all the petitioners are working as Radio Operators in the respondents, establishment on work-charge basis and that recently about two months back 85 work-charge employees (Bughti) were appointed on regular basis who were working on work-charge basis prior to their regularization.
8. I have heard learned counsel for both the parties. 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, learned counsel for the petitioners 'has reiterated the petitioners stand taken in their petition and contended that the only reason on account of which the petitioners have been victimised and are being refused employment as permanent Radio Operators on regular basis by the respondents, management is that they are members of the former CBA Union and took active part in the trade union activities in the respondent-establishment. He further contended that the petitioners were employed is work-charge employees against the posts of Radio Operators for the last 5 to 10 years and are performing the same job which the respondents have now advertised for recruitment i,e, 15 posts of Radio Operators in spite of the fact that the same work is being performed satisfactorily by the petitioners. He further contended that in terms of Notification No,S.R.O.576(1)/2000 dated 17-8-2000 as adopted by the respondent management on 14-7-2001, the petitioners being the Ex-Servicemen are entitled to relaxation of upper age limit of 15 years at the time of recruitment and therefore are eligible to be considered for appointment against the posts so advertised by the management on 14-2-2000.
9. On the other hand learned counsel for the respondents has not only denied the allegations of unfair labour practice, but also contended that Notification No,S.R.O.576(1)/2000 dated 17-8-2000 as adopted by the respondents-Company on [4-7-2001 does not apply to the petitioners and it cannot be put into effect from the date of advertisement i,e, 14-2-2000, through which 15 posts of Radio Operators were advertised. He further contended that despite liberal relaxation given by the respondents-Company, the petitioners were still over-age and were not eligible to compete with the outsiders. He further contended that irrespective of the length of service of the petitioners as work-charge employees, they cannot be taken to be permanent workmen, however he has laid great stress on the assertion that the interest of the petitioners will not in any manner be adversely effected in the matter of their employment under the respondent-Company. He further contended that since there is no element of unfair labour practice, the petition is exclusively triable by the Federal Service Tribunal and thus this Commission has no jurisdiction to interfere into the matter, because jurisdiction of this Commission is restricted and limited to the cases bases on allegation of unfair labour practice. In support of his contention he placed reliance on the judgments reported in:-- '
' (I) PLD 1961 (SC) 479: (2) PLD 1965 (SC) 420; (3) 2000 PLC (C.S.) 796; (4) 1991 SCMR 2216 (5) 1998 SCMR 882; (6) 1990 SCMR 1539 (7) 2000 SCMR 879; (8) 1998 PLC (C.S.) 53: (9) 1987 PLC 358 (10) AIR 1976 (S.C.) 98; (11) 1994 PLC 747; (12) 1999 PLC 57; (13) 1998 SCMR 2129 and (14) 1993 PLC 1626.
10. I have gone through the pleadings of the parties and their respective version and also examined the record of the case minutely. The admitted fact is that the petitioners being Ex-Servicemen were employed as work-charge employees against the posts of Radio Operators for the last 5 to 10 years and are performing the same job which the respondents have now advertised for recruitment i,e, 15 post of Radio Operators in spite of the fact that the same work is being performed satisfactorily by the petitioners. Question arises' as to why the petitioners who have already served the respondents-Company for the last 5 to 10 years should not be allowed to apply for the advertised posts. As regard the objection raised by the respondents that Notification No,S.R.O.576(1)/2000 dated 17-8-2000 as adopted by the respondents Company on 14-7-2001 does not apply to the petitioner and it cannot be put into effect from the date of advertisement i,e, 14-2- 2000 through which 15 posts of Radio-Operators were advertised, I am of the view that the respondents-management would not be adversely effected if the petitioners are allowed the benefit of the aforesaid notification and are considered for appointment against the posts so advertised by the management. Though the learned counsel for the respondents has laid great stress on the assertion that the interest of the petitioners will not be adversely affected in the matter of their employment under the respondents-Company. But actually it is not an objection.
However this may be a great solace for the petitioners that at least they shall not be removed from employment even if all the posts are filled up by initial appointment through fresh recruitment, but the said undertaking actually does not come to the help of the petitioners as they claim to be considered for selection as Radio Operators on regular basis.
11. The respondents in their legal objections have also taken the plea that in Writ Petition No,646 of 1999 pending in the Lahore High Court, Rawalpindi Bench, the issue of regularization of casual/work-charge employees of the respondents-Company which has direct bearing on the instant petition is pending judicial scrutiny. Therefore, the matter being directly and substantially the same, the petitioners are excluded from invoking jurisdiction of this Bench. I have gone through the copy of the writ petition and also the prayer of the petitioner in the instant petition. In the instant petition before the N.I.R.C., the petitioners who have been employed as Radio Operators on work-charge basis, are praying for allowing the benefit of relaxation of upper age limit and for a direction to the respondents to consider them for appointment against the posts of Radio Operators, so advertised by the respondents. I am, therefore, of the view that the objection has no force, and the prayer is not hit by the pleadings in the said writ c petition.
12. It may be stated that in persuance of the powers delegated by the Board of Directors, the Managing Director vide Letter. No,AAO 103-15 dated 14-7-2001 has apporved adoption of S.R.O.No,576(1)/2000 dated. 17th August, 2000 with immediate effect, therefore, after allowing relaxation of upper-age limit as prescribed under the aforesaid Notification, the following petitioners Nos.1, 7, 10, 11, 12, 14, 17 and 19 namely: (I) Sajid Mehmood, (2) Ghulam Yasin, (3)
Muhammad Asad, (4) Qamar Ali, (5) Muhammad Tarim Khan, (6) Iftikhar Ahmed Kazi, (7)
Muhammad Kazim D and (8) Muhammad Pervaiz have become eligible to be considered for appointment/absorption on regular basis against the vacancies so advertised by the respondents as shown in" schedule A" (placed at page 121 of the file). It may also be submitted that upper age of 30 years shown in the advertisement is not bona fide as previously the upper age used to be 35 years as against 30 years now advertised and the period of service already served by the petitioners (who are ex-servicemen and have served the armed forces for 15 years) has been ignored. It may he pertinent to note that in terms of the Memorandum of Settlement executed between the respondents-management and the CBA union on 21-9-2002 (RW-1/I) the respondents-management is bound to regularise the work-charge employees.
13. The respondents have raised an objection that the order of adopting of S.R..0. No,576(1)/2000 dated 17-8-2000 is an Executive Order passed by the Managing Director and therefore, has no legal force. This objection is without any substance because after adoption of the said notification dated 17-8-2000 regarding relexation of age, all such employees shall be governed by the said Notification as adopted by the respondents on 14-7-2001 and the respondents are now stopped from taking this objection. Adoption of the said notification is now binding on the respondents- management.
14. Regarding the next objection raised by the respondents that circular dated 14-7-2001 cannot be made effective from the previous date and as such cannot be extended its application to the date of advertisement i,e, 14-2-2000 through which the applications were invited for direct recruitment, it may be stated that it is an admitted fact that in view of the order dated 28-8-2001 issued by this Bench, the posts so advertised have not yet been filled up. Thus the petitioners are entitled to the benefits of the aforesaid notification. This objection is, therefore, also not convincing.
15. The next objection raised by the respondent is to the effect that the said notification dated 17-8- 2000 relates to release/retired officers/personnels of Armed Forces of Pakistanis. This objection is also over ruled in view of the fact that the petitioners are retired Army Personnels. Moreover the said Notification dated 17-8-2000 of the Government of Pakistan has now been adopted by the respondents-Company and its benefit cannot be denied to the petitioners being employees of OGDCL who are working on the same job for which the posts have been advertised. Now since the respondent-Company has relaxed the upper age limit, the said 8 petitioners become eligible to be considered against the advertised posts. The respondents should consider their applications accordingly.
16. Arguments were also advanced on the objections raised by the respondents regarding maintainability of the petition and jurisdiction of the Commission. Learned counsel for the respondents has submitted that this Commission has no jurisdiction to deal with the cases of the petitioners in view of insertion of section 2-A in the Service Tribunals Act, 1973 on the ground that the respondents establishment is run and controlled by the Federal Government, hence the Federal Service Tribunal has the exclusive jurisdiction to try such cases. On the other hand learned counsel for the petitioners has contended that Federal Service Tribunal has no power to deal With the cases of unfair labour practice, which functions have been specifically assigned to the Commission under section 22-A(8)(g) of I.R.O., 1969. The relevant para of section 22-A(8)(g) of the said Ordinance is reproduced below-- "to deal with cases of unfair labour practice specified in sections 15 and 16 on the part of employers, workmen, trade unions of either of them or persons acting on behalf of any of them. Whether committed individually or collectively, in the manner laid down under section 25-A, or section 34 or in such other way as may be *scribed 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".
He further contended that notwithstanding the insertion of section 2-A in the Service Tribunals Act 1973, the jurisdiction of N.LR.C. Remains intact under section 22-A(8)(g) of 1.R.O., 1969 and therefore assumption of jurisdiction by the N.1.R.C. Is valid. Agreeing with the contention of the learned counsel for the petitioners. I hold that section 2-A of the Service Tribunals Act, 1973 is not applicable to the facts of this case as already held by the Full Bench of this Commission.
17. As discussed above, on minute examination of the pleadings of the parties and their respective versions, I find that the petitioners Nos. l, 7. 10, 11, 12, 14, 17 and 19 succeeded in proving that on account of their trade union activites they have been victimised by way of unfair labour practice as defined under section 15 of I.R .0., 1969, whereas in respect of petitioners Nos.2 to 6, 8, 9, 13, 15, 16 and
18. I find that they have failed to prove that on account of their trade union activities they have been victimised. Mere bald allegations of unfair labour practice are not sufficient to prove victimization.
18. Upshot of the above discussion is that petitioners Nos.1, 7, 10, 11, 12, 14, 17 and 19 succeed in proving unfair labour practice on the part of the respondents, I have therefore no other alternative but to accept the versions of the said petitioners and direct the respondents not to prepare sign or issue any appointment letter/order to any outsider against the 8 posts of Radio Operators for which the aforesaid petitioners have submitted their applications to the respondents and the said petitioners be considered for appointment on regular basis against the said posts of Radio Operators.
19. In view of the above observation, the petition to extent of petitioners Nos.1, 7, 10, 11, 12, 14, 17 and 19 namely (1) Sajid Mahmood, (2) Ghulam Yasin, (3) Muhammad Asad (4) Qamar Ali (5) Muhammad Tariq Khan, (6) Iftikhar Ahmed Kazi (7) Muhammad Kazim and (8) Muhammad Pervaiz is accepted, whereas in respect of petitions Nos.2 to 6, 8, 9, 13, 15, 16 and 18, I find no merit in their case and accordingly to the extent of the said petitioners, the petition is dismissed. Parties are directed to bear their own costs. File be consigned to record.