The petitioner has filed this petition against the respondent-Bank under section 33 read with sections 40,49,63 53(b) and 46 of the I.R.O.,2002 with the following prayer:-- ' That the respondent-Bank may kindly be directed not to commit any act of unfair labour practice or provisions relating to protection given by the I.R.O. And other laws of the country, as defined under section 63 of the I.R.O., 2002. b. That the respondent-Bank may be directed to withdraw the circular and not to obtain undertaking on solemn affirmation as indicated in Annexure-A to the Circular No,001 dated 13-3- 2004 which would be against the provisions contained in sections 40,49,63,53(b) and 46 of the I.R.O., 2002. c. That the respondent may also be directed not to terminate, dismiss or discharge any member of the union/federation or worker for not complying with the impugned Circular.
2. The fact in brief giving rise to this petition are that the petitioner No,2 is a Federation of Trade Unions operating in the ABL registered with NIRC under registered No,3/1983. It is alleged that the petitioner-Federation has 19 members unions, a list of which is enclosed with the petition as Annexure 'I'. It is also alleged that all the unions mentioned in annexure-1 are CBAs and are federated with the. Petitioner-Federation. It is also alleged that since the petitioner-Federation is comprised of all the CBAs, it is also CBA in its own right. It is also alleged that on 31-8-2002, a memorandum of settlement was signed between the federation and the respondent-Bank which is enclosed with the petition as Annexure-2 and hence for all the intents and purposes of the I.R.O., the petitioner-Federation is a CBA. It is alleged that unions affiliated with the Federation are CBA within the areas of their operation i.e, Provinces, regions etc. It is also alleged that since there is no other federation in the respondent-Bank except petitioner No,2, it is the only federation to represent the workers of the bank throughout the country and is legally competent to move the present petition. It is also alleged that even otherwise as the petitioner-Federation has been recognized by the management as a CBA, the petitioner Federation is also a CBA undersection 22 of the I.R.O., 2002 for the purposes of acting as CBA with the respondent-Bank on behalf of the workers, particularly because the management of the bank has entered into a settlement with the petitioner No,2. It is alleged that the following trade unions have also singed their instruments of Federation:--
(i) Allied Bank Employees Union Regd. CBA, Peshawar (City Cantt.) Nowshera.
(ii) ABL Workers Union (CBA) Gujranwala.
(iii) ABL Labour Union (CBA) Sindh, Karachi.
(iv) ABL Employees Union (CBA) Jhelum Region.
' It is also alleged that the above said unions who are certified CBAs have surrendered their right of collective bargaining at the national level to the, petitioner Federation as under:-- "2. To undertake collective bargaining
(a) give notices
(b) make applications
(c) initiate proceedings in the National Industrial Relations Commission and seek,
(d) adjudication and determination of Industrial Dispute by it and be a party to it and appear before N.I.R.C. Exercise all powers enabling it in that behalf through officers by whatever name and designation called in the said Federation operating and functioning at National Level, but so within the frame work of its constitution and as authorized by sections 22 and 56 of I.R.O., 2002."
' It is also alleged that this petition is being filed by petitioner No,1 in his individual capacity as a worker employed as Cashier in the respondent-Bank and also as President of Federation which is a CBA and has also raised an industrial dispute vide petition bearing No,9(1)/2003. It is also alleged that this petition is filed on behalf of all the workers employed in respondent-Bank in its capacity as CBA. It is also alleged that the respondent-Bank had issued a circular No,001 dated 13-3-2004 addressed to all the Divisional Heads and all the Regional General Managers under the subject "statement of ethics and business practices" a copy of the same is enclosed at Annex:3 to the petition. It is alleged that it has been stated in the said Circular as under:-- "In order to strengthen corporate systems and policies and to ensure transparency and fair play the Bank has decided tointroduce the Ethics and Business Practices to be followed by all employees of Allied Bank of Pakistan Limited. Accordingly, a code of Ethics and Business Practices has been designated and enclosed as annexure' A".
' It is alleged that a perusal of the Circular would show that all Divisional Heads and Regional General Managers are requested to ensure that copies of the enclosed "Statement of Ethics and Business Practices" are handed over to each and every employee of the respective Division/Region.
Each employee must thoroughly go through the document and endorse it with his/her signatures and return the document to the concerned Divisional Head/Regional General Manager who on receipt of the signed copies of the statement of Ethics and Business Practices from all the employees, should send the same to Human Resources Division by 20-3-2004. It has been reiterated that all the employees of the bank have to understand and sign the document under subject and have to act and practise accordingly. It is alleged that perusal of annexure-A of the Bank which is enclosed with the Circular No,001 dated 13-3-2004 would show that actually this is an affidavit. It is alleged that there is no law which authorizes the respondent-Bank to obtain an affidavit and nor any rule of the respondent-Bank authorizes the bank to obtain such affidavit. It is alleged that perusal of the Circular 001 dated 13-3-2004 also does not show that such a decision was taken by the Board of Directors for the issuance of this circular and hence this circular is allegal. It is alleged that even the service rules framed by the bank are not statutory and as such the provisions of Standing Order override the Service Rules. It is also mentioned in the circular that the deponent employee would abide by ABL Rules and obey all lawful orders and directives which may from time to time be given by any person, although there is no mention of any lawful order and directive because the employees are asked to sworn an affidavit to abide by those lawful orders and rules which are not yet in existence. It is alleged that in second para. Under head 'Abidance of laws/rules' each employee has been asked to state that he shall not be a member of any political party, take part in, subscribe in aid or assist in any way, any political movement, that such statement would be against the fundamental rights as given in the Constitution of Islamic Republic of Pakistan hereinafter called the Constitution. It is alleged that there is no justification to call for an affidavit because the ABL does not enjoy any powers to call such an understanding on solemn affirmation from the employees. It is alleged that no law authorizes the bank to take away this fundamental right of the employees/workers. It is alleged that all the undertakings under the head "Integrity", Confidentiality, Professionalism, Business/Work Ethics, have been issued in contravention of the Constitution of Pakistan and without any powers enjoyed by the respondent- Bank in this behalf. It isalleged that these undertakings are designed to treat the employees as slave. It is also alleged that undertaking under the head "Business/Work Ethics" also asked the employees that they would not carry out trade union activities during office hours. It is alleged that the said undertaking amounts to pressurize the employees who have formed their trade unions and federation. It is alleged that in this stifling atmosphere of terrorism, no human being can work with a peaceful mind which would also not be beneficial to the bank. It is alleged that a clear case of unfair labour practice is therefore made out. It is alleged that no where in the world including Pakistan such an undertaking on solemn affirmation on the subject contained in Annex-1 has been called for and no union can exist under such stifling atmosphere and cannot safeguard the interest of its members and workers as provided in the I.R.O., 2002. It is alleged that main object of obtaining such an affidavit on solemn affirmation is to eliminate trade unions and take unionism from the respondent-Bank. It is alleged that no single Bank has framed such policy. It is also alleged that not a single reason or justification has been shown for such an undertaking and the said undertakings are ultra vires of law and Constitution of Pakistan. It is also alleged that an industrial dispute has been raised by the petitioner-Federation which is pending before this Hon'ble Commission, hence the petition is legally maintainable under section 49(4)(e) of the I.R.O., 2002 and the proviso added to the said clause (e) of sub section (4) of section 49 does not debar the filing of the petition. It is alleged that it is laid down under section 40 of I.R.O., 2002, that the conditions of service would remain unchanged and no employer shall, while any conciliation proceedings or proceedings before an Arbitrator, the Labour Court or a Court of competent jurisdiction in respect of an industrial dispute are pending alter to the disadvantage of any workman concerned in such dispute, the conditions of service applicable to him before the commencement of the conciliation proceedings or of the proceedings before the Arbitrator, the Labour Court or, as the case may be any other Court of competent jurisdiction, nor shall he, save the permission of the Arbitrator, the Labour Court or a Court of competent jurisdiction while any proceedings before the Arbitrator, the Labour Court or the High Court are pending, discharge, dismiss or otherwise punish any workman except for misconduct not connected with such dispute, hence as per petitioner they are legally entitled to claim prevention of termination, dismissal or discharge as provided under the law. It is alleged that a workman who is a party to an industrial dispute shall be entitled to be represented in any proceedings under this Ordinance by an office- bearer of a CBA. It is alleged that all the workers are party to an industrial dispute which has been raised by the petitioner-Federation and all the workers of the respondent-Bank are entitled to be represented by the petitioner-Federation. It is also alleged that Government of Pakistan has introduced Standing Orders Ordinance,1968 and Industrial Relations Ordinance, 2002 to protect the interest of the Workers and almost all the provisions of the Circular are ultra vires of I.R.O., 2002, Standing Orders Ordinance, 1968 and Constitution of Pakistan. It is alleged that Government of Pakistan has also ratified ILO conventions of freedom of association. The Government has also ratified conventions against forced labour. It is alleged that the management of the bank would take action mainly against members and office-bearers of the union if such an undertaking is not signed by the employees and members and office-bearers of the unions/federations, hence this petition.
3. Along with the main petition the petitioners filed application forgrant of stay regarding suspension of operation of this circular. They contended that they have made out a good prima facie case and they will suffer an irreparable loss if the stay is not granted in terms of the prayer made in the petition and balance of convenience lay in their favour.
4. The respondent-Bank has filed reply to the main petition and also objections to the stay application. The respondent-Bank has raised preliminary legal objections. They have contended that none of the petitioner is CBA, hence the petition under section 33 is not maintainable. They have also contended that under section 50 of I.R.O., 2002 only petition in respect of right, guaranteed or secured under any law, award or settlement is maintainable and same is the position under section 33 of I.R.O. No provision of any law award, or settlement has been pointed out by the petitioners. They have also contended that the petitioners have come with un-cleaned hands and have suppressed material parts of certain documents by producing one page and suppressing other pages hence the petition is liable to be dismissed on this ground alone. They have also contended that even if for the sake of arguments, it is assumed that the petitioner have rights of nature as asserted in petition, the petitioner-Federation is not competent to maintain the petition in respect of rights of employees and the petition is liable to be dismissed for want of cause of action as no advance action has been taken against any of the employees.
5. Without prejudice, to the above legal objections, on merits the respondents have partly admitted and partly denied the contents of the petition. They have admitted that the petitioner No,2 is Federation of Unions in the ABL, which claims to be the CBA in the said Banking Company. They have however, contended that after promulgation of Industrial Relations Ordinance, 2002 both the CBAs as well as Federation have lost their legal status. They have also admitted the issuance of circular dated 13-3-2004 to all the Divisional Heads and Regional General Managers but they have denied all other allegations regarding the changing of terms and conditions of the employees asalleged by the petitioners. They have also admitted that Annexure A/2 is a true copy of Memorandum of Settlement but they have contended that the petitioner-Federation did not negotiate and enter into settlement in its own capacity. They have contended that they did so merely because it was authorized to undertake negotiations by the CBA Unions. They have produced copies of such resolution as annexure-A with the reply. They have also contended that there is no concept of recognition of unions under the Industrial Relations Ordinance, 1969 or even I.R.O., 2002. They have contended that the petitioners have enclosed only part of page-1 of the settlement with the petition but the petitioner has with mala fide intentions suppressed rest of pages of the settlement from this Honourable Commission. Both copies of entire settlement are enclosed and marked as Annex B and B/1. They have also contended that neither the petitioner No,1 nor petitioner No,2 are CBA so as to be entitled to maintain petition under section 33 of the I.R.O., 2002. They have contended that circular is merely a communication of a set of principles and employees are required to read and understand them and thereafter follow them and it is not an affidavit as alleged by the petitioners. They have contended that if any employee feels that any particular provision of circular is against rules or against Standing Orders Ordinance, he has a right to point out the same to the management. They have said that the D petitioners have not been able to do that. They have contended that this circular is almost the reproduction of rules from rules 26 to 43 of Allied Bank of Pakistan Limited (Staff) Service Rules, 1981 and each employee at the time of entering in employment agrees to abide by these rules. They have contended that requiring employees to abide by rules is not violation of fundamental rights. The copy of these rules has been annexed with objections as annexure-C. They have contended that the petitioners have neither any prima facie case nor balance of convenience is in their favour nor they will suffer irreparable loss if the operation of the impugned order is not stayed. They have further contended that the stay application as well as the main petition may be dismissed because the petitioners have no cause of action to file this petition nor the petitioners are CBAs to maintain this petition.##TE#
6. I have heard Mr. Rais Ahmed Jafri, learned Counsel for the petitioners and Mr. Shahid Anwar Bajwa, learned counsel for the respondent-Bank at length and gone through the record carefully.
7. Mr. S. Rais Ahmed Jafri, learned Advocate for the petitioner contended that the petitioner No,2 is a CBA. His argument was three fold:--
(I) Constituents Members of the Federation are CBAs and therefore by virtue of instruments of Federation, the Federation becomes CBA;
(ii) The management has entered into an agreement with theFederation He specifically referred to agreement enclosed as Annex: A-2 with the petition which is first page of memorandum of Settlement.
(iii) There is no CBA certified at the national level and therefore under section 22, the Federation can act as if it has been recognized as CBA.
8. Mr. S. Rais Ahmed Jafri next contended that CBU has been determined vide order passed on 29- 4-2004. The Federation has filed application for its certification as CBA in the CBU hence it can act as such. He also contended that the petition was maintainable because the Federation is a trade union as defined under section 2(xxix) of I.R.O., 2002. Coming to the Circular issued by the bank on 13-3-2004 impugned in this petition, Mr. S. Rais Ahmed Jafri contended that this circular firstly changes.The terms and conditions of employment of workers and it cannot be done in view of section 40 of the I.R.O. As industrial dispute bearing No,9(01) of 2003 is pending adjudication. Mr. S. Rais Ahmed Jafri specifically objected to certain clauses of the Circular and I shall revert to that in their appropriate places.
9. On other hand Mr. Shahid Anwar Bajwa contended that it is settled law that in one establishment, there can be only one CBA. In support of his contention he relied upon the authorities reported in 2002 PLC 145 and 1973 PLC 407. He also contended that section 22 of I.R.O., 2002 is attracted only when no CBA has been certified in the Establishment. He asserted that the petitioner No,2 is not a trade union of workman, hence it cannot be. CBA., He also contended that even if it is assumed that the petitioner No,2 can be a CBA, it has to be certified as CBA, under section 20 of the I.R.O.
2002,which has not been done. He has also argued that no documents whatsoever have been produced by the petitioners to establish that the petitioner-Federation is a CBA. Mr. Shahid Anwar Bajwa further contended that the stand of the Federation is contradictory. He said that on the one hand it claims that its members are CBA which clearly indicates that Federation itself is not CBA and secondly it also clearly indicates that CBAs have been certified and therefore section 22 cannot be attracted. He also contended that no CBA in the CBU has been certified. He has stated that Federation itself has applied for certification as CBA in CBU. If so how can it claim as certified CBA when it has itself applied for such certification. Mr. Bajwa also argued that as the Federation is not CBA therefore under section 33 of the I.R.O. It cannot maintain petition. In support of his contention Mr. Bajwa relied upon the authority reported in 1982 PLC 256 (High Courthore). Mr. Bajwa further contended that even if the Federation is assumed to be CBA, it can maintain petition under section 33 only in respect of its own rights and not rights of individual workers. In support of his contention, he relied upon the authority reported in 1992 SCM R 36. Mr. Bajwa further argued that a facility has to be available to Workers under any law, award or settlement and only then a petition under section 49(4)(e) of I.R.O. 2002 can be maintained. In support of his contention Mr. Bajwa relied upon Case No,7A(3)/92 (United Bank Employees Federation through its Provincial Secretary Raja Sarfraz Khan v. United Bank Limited through its President) in which Mr. S. Rais Ahmed Jafri himself appeared for respondents and propagated the proposition as is now being canvassed by Mr. Bajwa. As for agreement Mr. Baja referred to Annex B page 6 para. (g) which reads as under:-- "Since the Allied Bank Workers Federation of Pakistan IS NOT CBA but its constituents members are CBAs for various groups of establishment within the Bank, it is clearly accepted and specifically agreed by the Federation that the benefits and increases allowed under this settlement shall be payable and admissible to workmen working in establishments within the respective arreas of the above named CBAs and not to other workmen or employees."
' The above clearly shows that the Federation itself has agreed with the management that it is not CBA. Therefore the Federation cannot maintain this petition. The petition is therefore liable to be dismissed on this short ground alone.
10. Mr. Shahid Anwar Bajwa also challenged the jurisdiction of this Court. According to Mr. Bajwa, the jurisdiction of this Commission is attracted if in the petition there are allegations of unfair labour practice.##TE# In support of his contention Mr. Bajwa has relied upon the authority reported in PLD 1988 SC P-53. Mr. Rajwa further relied upon the authority reported as 2002 TD Labour 223 for the proposition that mere issuing of a circular does not constitute unfair labour practice. Mr. Bajwa also contended that as the present petition is not of unfair labour practice because it involves the issuance of circular by the Bank to its employees, hence this Commission has no jurisdiction to proceed further in this matter. Mr. Bajwa also referred to definition of trade union given in section 2(xxix) I.R.O. 2002 and pointed out that the new definition states that at least two industry-wise trade union CBAs or 10 other CBAs must be members of the Federation for the Federation to be treated as a Trade Union. According to Mr. Bajwa the definition is materially different from definition of trade union given in section 2 (xxvi) of I.R.O.
1969. Therefore, the contention of Mr. Jafri, that Federation is CBA cannot be accepted. According to Mr. Bajwa the Federation cannot be a trade union because:--
(i) Firstly a CBU has been determined and there can be only one CBA in single CBU of Allied Bank of Pakistan Ltd.
(ii) Secondly the definition of establishment has been changed and the entire Allied Banof Pakistan Limited constitutes one establishment under the new definition and it is settled law that there can be only one CBA in the entire ABL, and
(iii) Thirdly the Federation can became a trade union only if it meets either of the two conditions stated in section 2 (xxix) of I.R.O.
2002.
11. Mr. Bajwa contended that in view of the above, it is not possible for the Federation to maintain this petition. Mr. Jafri has not been able to rebut this aspect of the argument. Therefore in my opinion the Federation is no longer an entity entitled to registration or remaining registered as a trade union of Federation.##TE#
12. Before coming to the merits of attack on the circular two points need to be decided first. Firstly Mr. S. Rais Ahmed Jafri's contention is that employees have been asked to sign statement on oath and file affidavits. This contention has rightly been controverted by Mr. Bajwa who has stated that document in question requires the employees to do the following:-- "I hereby confirm that I have read and understood and signed Statement of Ethics and Business Practices and confirm to abide by the same."
Mr. Bajwa contended correctly that the above statement does not constitute an affidavit as alleged by Mr. Jafri. In support of his contention Mr. Bajwa has relied upon the authority reported in 1988 PCr.LJ 2357 (Karachi) Abdul Rehman v. State) which fully supports his view point.
13. Mr. Bajwa next contended that crux of arguments of Mr. S. Rais Ahmed Jafri was that Standing Orders have been modified by issuance of this Circular impugned in this petition while the employer cannot do that without agreement with the union. He referred to section 3 of the Ordinance of 1968 which section provides that every industrial and commercial establishment shall subject to the other provisions of the Ordinance, be regulated in accordance with the Standing Orders. Section 4 provides that the Standing Orders may be modified by means of collective agreement and not otherwise. Thereafter Mr. Jafri referred to Standing Order 15(3) of Ordinance 1968 which lists misconducts. Contention of Mr. Jafri was that the Circular has modified Standing Orders and it cannot be done except through a collective agreement. Mr. Bajwa controverted this argument of Mr. Jafri and drew my attention to Standing Order No,15(1)(ii)(a) of Ordinance 1968 which says "Disregard or disobedience of rules or Orders" and section 15(3)(a) of the saidOrdinance, 1968 which says "wilful insubordination or disobedience whether alone or in combination with others, to any lawful and reasonable order of a superior". Mr. Bajwa contended that if superior does not have right to give order and make rules how disregard or disobedience of rules and orders be declared to be misconduct. The fact that it is so, clearly indicates that employer has power to issue rules and orders. Thus there is right of employer to issue rules and orders and thereafter it is obligation of the employee to obey its rules and orders. It need not be said that Standing Orders itself requires for rules and orders to be "lawful and reasonable". Mr. S. Rais Ahmed Jafri, has not objected to certain clauses although in none of the clauses his stand is maintainable but I refer to his submssions. Mr. S. Rais Ahmed Jafri has objected to the following clauses in the first place:
(a) "I stand firmly against supporting the activities of any group of individuals that unlawfully threatens public order and safety. I shall not be a member of any political party, taking part in subscribe in aid of, or assist in any way, any political movement. I shall not express views detrimental to the ideology, sovereignty or integrity of Pakistan."
' I do not see how any one can object to it because what the employee is being asked is that he shall not support group or individuals that "unlawfully threatens" public order and safety.
(b) "I will not indulge in any kind of harassment or intimidatio whether committed by or against any senior/junior, co-worker, customer, vendor or visitor. I will not use language, written or spoken intra office communication(s) or communication(s) with individual(s) outside the office that may contain an statement or material that is offensive to others. I will never use ABL's system to transmit or receive electronic images or text containing ethic slur, social epithets or anything that might be construed as harassing, offensive or insulting to others."
' Mr. Jafri contended that the above para. Curtails personal liberties of employees. Mr. Bajwa rightly and correctly controverted the objections. Mr. S. Rais Ahmed Jafri by saying that these are same provisions as contained in section 27-B of the Companies Ordinance, 1984 which are reproduced below:-- "27-B Disruptive Union activities---(1) No officer or member of a trade union in a banking company shall use any bank facilities including a car or telephone to promote trade union activities, or carry weapons into bank premises unless so authorized by the management, or carry on trade union activities during office hours, or subject bank officials to physical harassment or abuseand nor shall he be a person who is not an employee of the banking company in question."
' Hence to my mind there is nothing wrong with the above para.
14. Mr. Shahid Anwar Bajwa, Advocate took me through the rules of the Bank produced as Annex: C with reply statement. He has compared each rule with each clause in the circular. I do not find any material difference between the two. There have been some improvement for example money laundering. It was not a serious concern in these parts of the world in 1981 when the rules were framed. It has now become a serious concern. Similar is the position with clauses relating to computers and information technology.
15. I have carefully considered the contentions of both the sides and gone through the authorities relied upon by them. I am of the view that contentions of Mr. Jafri, are not tenable nor the provisions of theand Standing Orders pointed out by him support this view while contentions of Mr. Bajwa are tenable and the authorities relied upon him fully support his point of view. The petitioner No,1 Muhammad jmal Khan cannot be CBA as he is human being and the petitioner No,2 is also not CBA as discussed above. Hence this petition is not maintainable and is liable to be dismissed on this short ground alone which Ihereby do. The impugned circular does not change the service conditions of the workers and does not constitute unfair labour practice as similar circular has also been issued by the MCB as admitted by Mr. S. Rais Ahmed Jafri during the course of arguments.
This circular is almost in conformity with the Service Rules of the Bank and also in accordance with Standing Orders Ordinance, 1968. As such this petition as well as the stay application are devoid of any merit and are dismissed accordingly for the reason indicated above.
Petition and .