' This is petition under section 49 (4)(e) of I.R.O., 2002 read with Regulation 32(2) of N.I.R.C. (P&F)
Regulations, 1973 along with an application under Regulation 32(2)(c) N.I.R.C. (P&F) Regulations, 1973 supported by affidavit filed by the petitioner against the respondents.
2. The facts of the case as stated in the petition are that the petitioner is employed as Telephone Operator in the respondent establishment and is permanent workman. She is member of Salfi Textile Mills Workers Union which is CBA. Her husband Muhammad Afsar General Secretary of Salfi Textile Mills Workers Union served charter of demands, dated 14-9-2004 on the respondents. It is alleged that after submission of charter of demands, the officers of the respondent-Establishment started harassing and threatening the petitioners to ask her husband Muhammad Afsar to withdraw the charter of demands and resign from the General Secretaryship of the CBA Union, otherwise' her A services will be terminated. She refused as such she apprehends her termination from service. It is prayed to restrain the respondents and other connected officers from dismissing, discharging, terminating or transferring the petitioner and from committing any unfair labour practice.
3. The respondents filed reply with legal objections on main petition and counter-affidavit on stay application. The legal objections raised are regarding maintainability and jurisdiction. The respondents denied that Muhammad Afsar husband of the petitioner is General Secretary of Salfi Textile Mills Workers Union. According to the respondents change of office-bearers of Salfi Textile Mills Workers Union has been approved by the Registrar of Trade Unions vide his letter, dated 21-10- 2004, wherein Manzoor Hussain is shown as General Secretary. It is submitted that charter of demands, dated 14-9-2004 served by Muhammad Afsar being not valid was subsequently withdrawn by Manzoor Russian General Secretary of Salfi Textile Mills Workers Union vide his letter, dated 26-10-2004, Annex. R/2. The respondents denied that they have threatened the petitioner of termination of her services. The respondents denied that any unfair labour practice was being committed, or already committed by them.
4. On presentation of the petition ad interim prohibitory order was passed by this Commission on 2-10-2004, which after hearing both the parties was confirmed vide order, dated 29-12-2004.
5. On 18-12-2004 Shaukat Ali Malik, General Manager (Admn.) and Factory Manager of the respondents filed statement annexed therewith charter of demands, dated 26-11-2004 served by Manzoor Hussain approved General Secretary of Salfi Textile Mills Workers Union and Memorandum of Settlement to have been executed by the respondents and Salfi Textile Mills Workers Union CBA on 11-12-2004.
6. The petitioner filed her affidavit-in-evidence and she was cross-examined by Advocate for the respondents. On behalf of respondents Shaukat Ali Malik, General Manager (Admn.) and Factory Manager filed his affidavit-in-evidence and he was cross-examined by labour representative for the petitioner.
7. I have heard arguments of Mr. Faisal Mahmood Ghani, learned Advocate for the respondents on 4-6-2005, on which date Mr. Muhammad Khursheed, labour representative for the petitioner submitted that the case be fixed for orders and meanwhile he will file his written arguments, as such the case was fixed for orders on 13-6-2005 and Mr. Muhammad Khursheed, labour representative for the petitioners was allowed to submit his written arguments till 8-6-2005 and Mr. Muhammad Khursheed, learned labour representative for the petitioners has submitted his common written arguments in Case No,4A(58)/ 2004-K., Case No,4A(62)/2004-K, Case No,4A(63)/2004-K, and Case No,4A(67)/2004-K, annexed therewith photocopy of the documents on 11-6-2005. And 1 have gone through the same.
8. Mr. Muhammad Khursheed, learned labour representative for the petitioners in his written arguments has contended that petitioner is employed as workman in the respondent- Establishment and is an active member of Salfi Textile Workers Union having status of CBA. She is working as Telephone Operator in the respondent-Establishment. She is wife of Muhammad Afsar General Secretary of CBA Union. He has contended that after submission. Of charter of demands by Muhammad Afsar in his capacity as General Secretary of Salfi Textile Mills Workers Union upon the respondents on 16-9-2004, the management of respondents harassed. And threatened the petitioner to ask her. Husband Muhammad Afsar to withdraw the charter of demands from the Registrar of Trade Unions; Sindh Karachi, otherwise her services will be terminated as such the petitioner approached this Commission and this Commission passed ad interim prohibitory order, dated 2-10-2004, which was then confirmed by order, dated 29-12-2004. It,is submitted that comments, legal objections, affidavit-in-evidence filed by the respondents are false and baseless.
The material available on record will show that the officers of the respondents are directly interfering in the trade union activities of the petitioner and after they failed to get charter of demands withdrawn, the respondents got another change of office-bearers accepted vide order, dated 21-10-2004. The newlyelected General Secretary is person of employer, who firstly withdrew the charter of demands at the instances of employer- 'and signed Memorandum of Settlement with the respondents in order to show that no industrial dispute is pending. It is submitted that all the acts of respondents of victimization to the petitioner and directly interfering in the trade union activities are illegal, unlawful and unfair labour practice. After passing the stay order by this Commission, the respondents have started victimization of the petitioner and other officers- bearers of the Union, for which various complaints, show-cause notices, medical certificate and police reports have been attached with written argument for information and consideration.
9. Mr. Faisal Mahinood Ghani, learned Advocate for the respondents in his arguments has contended that the petitioner is not an office-bearer of Salfi Textile Mills Workers Union. She claims to be member of Salfi Textile Mills Workers Union but in cross-examination she has admitted that she -has no form of membership of the Union but the same is with union. It is submitted that the petitioner in her affidavitin-evidence has stated that the respondents have withdrawn transport facility from her but the said fact is not mentioned in the petition and in cross-examination also she admitted that she has no letter from the company of pick and drop as the Company has never given any letter of pick and drop facility to her or anybody else. Shaukat Ali Malik, General Manager (Admn.) of the respondents in his cross-examination also has categorically stated that transport facility is provided to the staff, but there is route and whoever of the staff wants to avail that transport facility can get in the transport at the route. He has refuted the suggestion that the transport facility was snatched from the petitioner after interim prohibitory order was passed by this Commission. He has denied the suggestion that the petitioner resides on the route, where the transport of the management-plies. It is contended that the petitioner has led her evidence by way of affidavit-in-evidence regarding the facts not raised in the petition, which is not permissible, as it has been held in case of Messrs Choudhary Brothers Ltd. Sialkot v. The Jaranwala Central Co- operative Bank Ltd. Reported in 1968 SCM R 804 and in case of Abdul Haque and others v. Shaukat Ali and 2 others reported in 2003 SCM R 74. It is contended -that according to the petitioner she is wife of Muhammad Afsar claiming to General Secretary of Salfi Textile Mills Workers Union (CBA) as such on her refusal to ask her husband Muhammad Afsar to withdraw charter of demands and to resign from General Secretaryship of CBA Union she was being threatened of dismissal or termination. The same has been categorically denied in reply by the respondents and also in affidavit-in-evidence by Shaukat .Ali Malik, General Manager (Admn.) of the respondents and also in his cross-examination. It is submitted that the petitioner has admitted in her cross-examination that neither any show-cause notice nor charge-sheet has been served on her. In cross- examination she admitted that on whatever date she attended this Commission, it was adjusted in leave and her salary is not deducted. She also has admitted that the respondents pay her all the allowances. It is contended that the petitioner has levelled general and bald allegations in respect of unfair labour practice and no specific instance of victimzation has been mentioned by the petitioner. In cross-examination she has admitted that no time, and date of threat has been mentioned by her in the petition. It is submitted that Shaukat Ali Malik, General Manager (Admn.) and Notified Factory Manager in his cross-examination has refuted the suggestion that he had threatened the petitioner to get charter of demands withdrawn by her husband, failingwhich she will be dismissed from service. It is submitted that in her affidavit-in-evidence the petitioner has stated that she was transferred by the respondents from the post of Telephone Operator and was directed to be present in the building of school, situated in Labour Colony of the Mills. It is submitted that Shaukat Ali Malik, General Manager (Admn,) in his affidavit-in-evidence has categorically denied that the petitioner was transferred to school in the Labour Colony. Regarding submission of petitioner that she was being victimized because she is wife of Muhammad Afsar, the same has been denied by the respondents in reply and also in affidavit-in-evidence by Shaukat Ali Malik, General Manager (Admn) and Notified Factory Manager. It is also denied by Shaukat Ali Malik, General Manager (Admn.) and Factory Manager of the respondents that Muhammad Afsar is General Secretary of Salfi Textile Mills Workers Union. Moreover the change of office-bearers filed by Muhammad Afsar, claiming to- be the General Secretary of the Union filed on 16-9-2004 has been rejected by the Registrar of Trade Unions, Sindh, Karachi vide his letter, dated 7-10-2004. It is submitted that .Another change of office-bearers of Salfi Textile Mills Workers Union was submitted before the Registrar of Trade Union, Sindh Karachi, who accepted the same vide his letter of approval, dated 21-10-2004 filed as Annex.R/1, wherein Manzoor Hussain is shown as General Secretary of.Salfi Textile Mills Workers Union. It is contended that in the Unions Elections held in 2001 Muhammad Afsar was elected as General Secretary, but according to section 7(1)(J) of 1.R.O., 1969 the term. Of office-bearer shall not be exceeding two years for which an officer may hold office upon his, election or re-election, and according to corresponding section 6(1)(J) of the I.R.O., 2002 the term of office bearer shall not be exceeding three years for which an office-bearer may hold office upon his election or re-election, which term having expired, the notice under section 25(1) of the I.R.O., 2002 in respect of charter of demands, dated 14-9-2004 served by Muhammad Afsar, petitioner No,1 in Case No,4A(58)/2004-K, claiming to be General Secretary of Salfi Textile Mills Workers Union terming it as industrial dispute is not validly raised industrial dispute in the eye of law. In support of his contentions Mr. Faisal Mahmood Ghani, learned Advocate for the petitioner has referred to unreported order, dated 10-4-2001 of Hon'ble Supreme Court 'of Pakistan in case of MCB Staff Union of Pakistan v. Senior Member N.I.R.C. Lahore and 2 others in Civil Petition No,3024 and 904-L of 2001, order, dated 7-6-2002 of Hon'ble High Court of Sindh, Karachi in Constitutional Petition No,S-170 of 2002 in case of General Secretary, Port Muhammad Bin Qasim Harbour and Dock Workers Union and others v. C.B.R. And other reported in 2003 PLC 201 and order qf Full Bench of N.I.R.C. In case of Iftikhar Ahmed Bhatti v. Haji Khan Bhatti reported in 2001 PLC 465. It is contended that there are general and bald allegations levelled by the petitioner inher petition, so also in her affidavit-in-evidence. Neither any specific act has been shown nor any date, time and place has been mentioned by the petitioner in her petition, and also in her affidavit-in-evidence, the same also having been admitted in her cross-examination by the petitioner, as such the same does not constitute any unfair labour practice. In support of his contention Mr. Faisal Mahmood Ghani, learned Advocate for the respondents has relied upon order of Hon'ble. Chairman N.I.R.C. In case of Amjad Mahmood v. Zonal Head, United Bank Limited, Zonal Office Jhelum and 2 others reported in 2001 PLC 702 and order of Hon'ble Chairman, N.I.R.C. In case of Muhammad Shafi, UDC, W&S Directorate, CBA v. Capital Development Authority through Chairman, Islamabad reported in 2001 PLC 718. It is contended that merely becoming a member of any trade union or merely submission of charter ' of demands by the. CBA without any specific activity which may cause annoyance to the respondents, will not constitute any unfair labour practice. In support of his contention Mr. Faisal Mahmood Ghani, learned advocate for the respondents has referred order of Full Bench of N.I.R.C. In case of Chief Manager of Planning and Installation, Telephone' Industries of Pakistan v. Muhammad Saleem reported in 2003 TD (Labour) 411. It is submitted that the petitioner has admitted in her cross-examination that she is attending the Court on every date of hearing.
She also has admitted in her cross-examination that no deduction is made from her salary and she is getting all the allowances. Her own admission belies contents of para-10 of affidavit-in- evidence of the petitioner, wherein she has stated that her leave applications were rejected by the respondents, whenever she had appeared before the Commission. It is submitted that Shaukat Ali Malik, General Manager (Admn.) and Notified Factory Manager in his affidavit-in-evidence has categorically denied the allegations of the petitioner, which she has levelled in her petition as well as in her affidavit-in-evidence. He also had denied the suggestion that he and other officers of the management put pressure on the petitioner to ask her husband Muhammad Afsar to withdraw charter of demands. Mr. Faisal Mahmood Ghani, learned Advocate for the respondents has contended that jurisdiction of National Industrial Relations Commission is confined only to the cases related to unfair labour practice, and no unfair labour practice is established in the present case. In support of his contention Mr. Faisal Mahmood Ghani, learned Advocate for the respondents has placed the reliance on case of lftikhar Ahmed and others v. President National Bank of Pakistan and others reported in PLD 1988 Supreme Court 53 and case of Malik Nazar Hussain v. National Bank of Pakistan and another reported in 2004 SCM R 28.
10. I have given my anxious consideration to the arguments advanced by Mr. Muhammad Khursheed, learned labour representative for the petitioner in his written, arguments 'and Mr. Faisal Mahmood Ghani, learned Advocate for the respondents and have gone through the petition, reply statement and the evidence adduced by the parties.
11. The petitioner is not an office-bearer of Salfi Textile Mills Workers Union. She claims to be an active member of Salfi Textile Mills Workers Union but in support thereof she has not produced any document. Even she has not produced her union subscription receipt to support her contention. In cross-examination she has stated that she has no form of membership, but the same is with union.
Shaukat Ali Malik, Witness of the respondents in para. 6 of his affidavit-in-evidence has denied that the petitioner is an active member of Salfi Textile Mills Workers Union and on this aspect no question was suggested in cross-examination as such it shall be presumed that the petitioner is not member of trade union. Reliance is placed on 1991 SCM R 2300, wherein at page 2393, it has been held that where on a material part of evidence a witness is not cross-examined it may be inferred that the truth of such statement has been accepted.
12. Neither in the petition nor in her affidavit-in-evidence, the petitioner has mentioned her specific active role in trade union activities, but she has levelled only general and bald allegations. She has admitted in cross-examination that no time and date of threat has been mentioned in the petition.
The petitioner, therefore, has failed to establish case of, unfair labour practice against the respondent. The reliance is placed on order of Hon'ble Chairman, N.I.R.C. In the case of Muhammad Shafi, UDC, W&S Directorate, CDA v. Capital Development Authority through Chairman, Islamabad reported in 2001 PLC 718, wherein it has been observed that mere vague and bald allegation made by the petitioner without any specific instance of trade union activities will not constitute any unfair labour practice on the part of employer. Reference may also be made to order of Honourable Chairman N.I.R.C. In case of Amjad Mehmood v. Zonal Head, United Bank Limited, Zonal. Office Jhelum and 2 others reported in 2001 PLC 702.
13. In the petition, the petitioner has stated that she is wife of Muhammad Afsar who served notice under section 25(1) ofI.R.O.,2002 in respect of charter of demands on .The respondents, dated 14-9- 20,04. After submission of the charter of demands, the respondents threatened the petitioner to ask her husband Muhammad Afsar to immediately withdraw charter of demands from Registrar of Trade Union, Sindh, Karachi and to resign from the office-bearership of CBA, otherwise her services will be terminated. The petitioner in her affidavit-in-evidence has not stated that the respondents had also threatened her to ask her husband Muhammad Afsar to resign from the post of General Secretaryof Salfi Textile Mills Workers Union. Such an omission in affidavit-inevidence will amount to making contradictory statements by the petitioner, which adversely affects credibility of the petitioner. In para. 8 of the affidavit-in-evidence the petitioner has stated that after passing and confirmation of the interim order by this Honourable Commission, the respondents threatened her to withdraw the case and transferred her from Telephone Operator and kept her in the building of school situated in the Labour Colony. The petitioner has stated in her Affidavit-inevidence that the respondents also forcibly withdrew the transport facility from the petitioner. She has not produced any evidence to support her version. In cross-examination she stated that she had no letter from the respondents of pick and drop, as the Company had never given pick and drop facility to her or to anybody else. In cross-examination she stated that on whatever date when she ,attended the Court, the said date was adjusted in casual leave and her salary was not deducted. By giving such reply she has denied the contents of para.10 of her affidavit-in-evidence, wherein' it is stated by her that her leave application for attending this Commission and Labour Court were rejected by the respondents. In cross-examination she also admitted that the respondents pay her all the allowances. Shaukat Ali Malik General Manager (Admn.) of the respondents in cross-examination has refuted the suggestion that management and other officers of the management put pressure on the petitioner to ask her husband Muhammad Afsar to withdraw charter of demands. He also refuted the suggestion that he had threatened the petitioner that in case she' hadnot got charter of demands withdrawn by her husband Muhammad Afsai, she would be dismissed from service.
The suggestion was also denied by, Shaukat Ali Malik, respondents witness in his cross- examination that after the interim order was passed by this Bench of Commission, the management placed the petitioner from telephone operator to a school. The respondents witness refuted the suggestion that after interim prohibitory order was passed by this Bench of Commission, the transport facility was snatched from the petitioner. He also repudiated the suggestion that the petitioner resides on the route where the transport of the management plies.
The suggestion was denied that the petitioner is being victimized because she is wife of Muhammad Afsar. As such there is no any substantial evidence on the side of the petitioner that she was being victimized or threatened by the respondents on account of her any trade union activities, which may constitute unfair labour practice.
14. It is well-settled that N.I.R.C. Can assume jurisdiction only in the case when there is element of unfair labour practice as envisaged under section 63 of I.R.O., 2002. I am fortified in my view by judgment of Full Bench of Honourable Supreme Court of Pakistan in case of Iftikhar Ahmed and others v. President, National Bank of Pakistan andothers reported in PLD 1988 SC 53 wherein at page 66 it was held that the cases which the Benches are empowered to here under the clause must have an element of unfair labour practices in them; it does not encompass cases where no allegation of unfair labour practices is made. It may be mentioned that sections.15 and 16 of .The Ordinance set out instances of unfair labour practices on the part of the employers 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 they may not be relatable to unfair labour practices. In case of Malik Nazar Hussain v. National Bank of Pakistan and another reported in 2004 SCM R 28 at page 31 Honourable Supreme Court of Pakistan held that N.I.R.C. Has, no jurisdiction to entertain the petition on behalf of the. Petitioner, without E examining whether he has been made victim of unfair labour practice in accordance with the provisions of section 15 of the Industrial Relations Ordinance, 1969.
15. Regarding the documents attached with written arguments by Muhammad Khursheed, labour representative for the petitioner, it shall be pertinent to mention that since the same were neither filed with the petition nor produced with affidavit-in-evidence by the petitioner, the same cannot be considered as piece of evidence.
For the aforesaid reasons and case-law referred I am of the considered, view that in the .Present case there is no element of unfair labour practice, as such the petition is not maintainable and not within the jurisdiction of this Commission, hence it is dismissed and order, dated 29-12-2004 thereby confirming the interim Stay, dated 2-10-2004 is hereby vacated.