' This is application under Regulation 32 (2)(c) of N.I.R.C. (P&F) Regulations, 1973 supported by affidavit filed by Shahmurad Sugar MillsMehnatkash Union, CBA through its General Secretary Lakha Dino Jaskani to restrain the respondents from dismissing or terminating the office-bearers of the applicant union and also the workers employed by the respondents.
2. The counter affidavit was filed by the respondents and affidavitin-rejoinder was filed by Muhammad Anwar, Deputy General Secretary.
3. Heard arguments of Rana Mehmood Ali Khan, learned Representative for the applicant and Mr. Faisal MehmoodGhani,learned Advocate for respondents, who has also filed his written arguments.
4. RanaMehmood Ali Khan, learned Representative for the applicant has contended that the applicant is CBA in the respondent-establishment. The respondents are against the trade union activities. The respondents had pressurized the office-bearers of the applicant union to withdraw from the benefits allowed to the workers under the previous agreement and to voluntary reduce the same, otherwise they were threatened to be terminated. The respondents terminated 171 workers by order dated 22-4-2004. The applicant union filed petition before this Bench of Commission and against the order passed by this Bench of Commission, an appeal has been filed by the applicant union which is pending before the Full Bench. It is contended that the applicant union has served charter of demands, Annex.A/3 followed by notice of strike dated 17-10-2000, Annex.A/4 on the respondents. The respondents also has served charter of demands on the applicant CBA followed by notice of lock out. Now the matter is pending for conciliation before the Deputy Director Labour (Conciliation), Hyderabad. It is contended that the respondents have issued fresh charge-sheets to the workers including office-bearem Annex. A/11 to A/25. The respondents also have not taken on duty the seasonal workers, having service of 20/25 years and such petition also has been filed by the applicant union bearing No,4A(303)/2000-K. It is contended that the respondents have earned profit as in the previous year more sugarcane was crushed and sugar was even exported. It is contended that the respondents have threatened to make retrenchment and terminate more workers including the office-bearers in case the settlement is not signed of their choice, which the applicant CBA has specifically mentioned in para. 8 of the application.
5. Mr. Faisal MehmoodGhani, learned Advocate for the respondents has contended that the respondents have suffered losses in the year 1999 but since Excise duty paid by the respondents in excess was refunded in the previous year as such the profit had appeared in the Account Audit Report, Annex.R/5. He has contended that due to financial losses suffered by the respondents 171 workers were terminated on 22-4-2000 for which the petition was filed by the applicant union under section 22-A(8)(g) of the I.R.O, 1969 along with Application under Regulation 32(2)(c) of N.I.R.C. (P&F) Regulations, 1973 bearing Case No,4A(76)/2000-K, wherein the same contentions were raised, and stay application was dismissed by order dated 2-5-2000. Applicant CBA has filed appeal challenging this order dated 2-5-2000 before the Full Bench and against the order of Full Bench of N.I.R.C. The respondents have filed Constitution Petition No,816 of 2000 and the Honourable High Court of Sindh, Karachi vide order dated 27-6-2000has suspended the effect of the order of Full Bench of N.I.R.C. To the extent of direction to continue treating workers whose services have already been terminated. On undertaking of Mr. Mehmood Abdul Ghani, Advocate for respondents the status quo has been maintained in respect of those workers who have only been charge- sheeted so far but whose services have not been terminated. It was contended that since the matter relating to some issue is sub judice, as such the present petition filed by the CBA is hit by the principle of res judicata. It was .Contended that petition under section 22-A(8)(g) of the I.R.O., 1969 bearing Case No,4A(76)/2000 filed by the CBA is now pending for evidence. Next it was contended that the petition under section 22-A(8)(g) of the I.R.O., 1969 read with Regulation 32(2)(c) of N.I.R.0 (P&F) Regulations, 1973 was also filed by the respondents to restrain the office-bearers and other members of the union from raising slogans, go slow, strike and other agitational activities, but despite the prohibitory order passed in that petition, the office-bearers of applicant CBA and on their instigation other workers also continued with the said acts of violence, as such security proceedings were also filed by the respondents. It was contended that after filing of this petition, the office-bearers and other workers of the CBA resorted to illegal strike on 24-11-2000 and Form 'Y' was sent to the Labour Department by the respondents management. It was contended that the charge-sheet has been issued to the workers including office-bearers of the applicant CBA, Annex.A/11 to A/25 due to riotous and disorderly misbehavior, instigating others for raising slogans, using of abusive language, threatening the officers of dire consequences and even causing of assault and injury to the officers of respondents and also for holding gate meeting and the said acts, are subversive of discipline and amounts to misconduct on their part. He has contended that charge-sheets have not been issued as a result of trade union activities of the office-bearers and members of the applicant CBA, but are only simple cases of misconduct and it is prerogative/right of the employer to take disciplinary action against the worker for the act of misconduct. He has contended that the respondents have denied the contents of para. 8 of the petitioner and the respondents have never pressurized the office-bearers of applicant CBA to sign the settlement of their choice. It was also contended that the applicant CBA cannot espouse the cause of individual workers. Besides these arguments in the written arguments filed by Mr. Faisal MehmoodGhani, learned Advocate for the respondents, he has advanced his submissions on other legal objections raised by the respondents in the comments. In support of his contention Mr. Faisal. MehmoodGhani, learned Advocate for the respondents has placed his reliance on judgment of Full Bench of Honourable Supreme Court in case of Iftikhar Ahmed and others v. President, National Bank of Pakistan and others reported in PLD 1988 Supreme Court 53, wherein at page 66 it has been held that it is, therefore, not right to construe theclause 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. He has also cited judgment of Full Bench of N.I.R.C. In case of Muhammad Ali Azam versus Pfizer Laboratories Ltd., Karachi reported in 1990 PLC 662 wherein at page 666 it was observed that just because the proceedings of domestic inquiry in this case were conducted illegally and in violation of the basic tenets and procedure of conducting inquires as alleged by the learned Representative, it would still not ipso facto become a case of unfair labour practice nor would it lead to the conclusion of malice or mala fides. He has also referred to the order of Full Bench of N.I.R.C. Dated 13-6-2000 in Appeal No,12(39) of 2000 of Pakistan Insurance Corporation through its Secretary versus Mumtaz Ali Shah s/o Ghulam Shah wherein it has been observed that mere bald allegations of unfair labour practice are not enough to prove the victimization of the respondent and to make amenable for interference by the Commission, the act of the management. He has also referred to the order of Full Bench of N.I.R.C. In Appeal No, 12 (40)/2000 of Sheikh Muhammad Ashfaq son of Sheikh Anwar Hussain versus Capital Development Authority through its Member Administration, Executive Block, CDA Office, Islamabad wherein it was observed that mere vague allegations are not sufficient to attract the provisions of section 15 of the I.R.O, 1969. Unfair labour practice is sine qua non for invoking the jurisdiction of N.I.R.C. Which is not proved on the part of management, no relief can therefore, be granted under section 22-A(8)(g) of the I.R.O., 1969. He has also placed his reliance on order dated 25-10-2000 passed by me in case of Duty Free Shops Employees Union (CBA) through its General Secretary versus Mr. David-C-Gore, Managing Director, Duty Free Shops (Pvt.) Ltd. Karachi and 2 others bearing Case No,4A(379)/2000- L. Wherein it was observed that there are no specific instances of commission of acts unfair labour practice on the part of respondents in the petition, which may cover the case of the petitioners under the clauses enumerated in section 15 of the I.R.O.
1969. He has also placed his reliance on order of Full Bench of N.I.R.C. Dated 5-10- 1999 in Appeal No,12(31)/99-L of CDA through its Chairman and another versus CDA Employees Union (Pasha Group CDA through its General Secretary Mr. Farhat Kamal Pasha) wherein it has been observed that exercise of legal right does not constitute an act of unfair labour practice, mala fide or illegal.
He has also cited order of the Full Bench of N.I.R.0 in Appeal No,12(201)/96-L dated 12-9-1997 filed by Pakistan Agricultural Storage and Services Corporation Limited, Lahore through its General Manager (Admn.) v. Mr. Masood Ahmad, Ex-Deputy Project Manager, PASSCO, 45-A Peoples Colony, Faisalabad, wherein it was observed that the. Single Bench erred to assume jurisdiction without first deciding the important legal question as towhether the petition filed by the respondent was competent or not because the Commission could only entertain and decide a petition on the basis of allegations of unfair labour practice as per dictum laid down by the Supreme Court of Pakistan in PLD 1988 SC 53. He has also referred to order of Full 'Bench of N.I.R.C. Dated 14-4-1998 passed in Appeal No,12(34)/96-L, filed by WAPDA through its Chairman, WAPDA House, Lahore versus Muhammad DuryabYousafQureshi, 127-Faisal Town, Lahore, wherein it was observed that perusal of the. Petition shows that no instance of unfair labour practice was mentioned by the respondent and, therefore, in the absence of allegations of unfair labour practice, N.I.R.C. Had no jurisdiction to adjudicate the matter (PLD 1988 SC 53). He has also placed his reliance on order of Full Bench of N.I.R.C. Dated 8-7-1991 passed in Appeal No,12 (101)/89 filed by Amir Ali son of Sardar Muhammad, Driver, Metropolitan. Corporation, Lahore versus Mayer Lahore Metropolitan Corporation, Lahore and 2 others, wherein it was observed that the role of National Industrial Relation's Commission is not understood properly. The fact that the enquiry was wrongly conducted, the fact that there was a collusion to remove the appellant from service, the argument that whole proceedings were a farce are not the grounds for the Commission. The essential ground to enable the Commission to take up such a case is that an. Unfair labour practice has either occurred or is likely to occur. The Full Bench decision cited as National Motors Ltd. v. Muhammad Hanif (PLC 1987 (Part-II) page 547) is illuminative in this behalf. He has also placed his reliance on unreported order of Full Bench dated 7-1-1993 passed in Appeal No,12(154)/92 filed by Lahore Cantt. Cooperative Housing Society Employees Association through its President versus Lahore Cantt. Cooperative Housing Society Limited Lahore through its Vice-Chairman, wherein it was held that the action simpliciter of the employer by entrusting services of maintenance, gardening and motor transport etc. To contructdrs by relieving the persons assigned to these jobs, in order to improve the quality and quantity of work cannot on the present showing be termed to be mala fide amounting to an act of unfair labour practice. The handing over the services of employees by an employer to the Contractors does not fall under the ambit of section 15 of the Ordinance. The employer can, in his discretion, take such steps in the interest of the establishment in order to yield better results, provided it is done bpna fide and not with ulterior motives of victimization. In the instance case the element of unfair labour practice and mala fide on the part of the employer is conspicuously missing. In support of his contention that the applicant CBA cannot espouse the cause of individual workers Mr. Faisal Mehmood A. Ghani; learned Advocate for the respondents has placed his reliance on unreported order dated 1-10-1997 of Full Bench of N.I.R.C. Passed in Appeal No,12 (99)/96 of Pakistan Peoples Workers Union Northern Areas, Government Transport Corporation Islamabad throughits President and General Secretary versus Northern Areas Government Transport Corporation through its Deputy Manager, and also order dated 28-8-2000 passed by Mr. Allah RakhioLeghari, learned Member, N.I.R.C. Karachi Bench in case of P.T.E. Employees Union (CBA), Karachi through its Joint Secretary Central versus M/s. Pak Telecommunication Company Limited through its General Manager and 3 others bearing Case No,4A(202)/2000-K.
7. I have considered the arguments advanced by RanaMehmood Ali Khan, learned Advocate for the applicant and Mr. Faisal MehmoodGhani, learned Advocate for the respondents and I have gone through the material placed on record.
8. The correct position of the facts and circumstances of thepresent case as can be deduced from the arguments advanced by learned Representative for the applicant and learned Advocate for the respondents is that applicant CBA has previously filed a petition undersection 22-A(8)(g) of the 1969 along with the Application underRegulation 32(2)(c) of N.I.R.C. (P&F) Regulations, 1973 bearing Case No,3A(76).2000-K. Seeking more or less the similar relief and Application under Regulation 32(2)(c) of N.I.R.C. (P&F) Regulations, 1973 was dismissed on 2-5-2000, which order was challenged by the applicant CBA before the Full Bench of N.I.R.C., and against the order of Full Bench of N.I.R.C., Constitution Petition filed by the respondents is pending before the Hon'ble High Court, wherein order has been passed on 27-6-2000 by the Hon'ble High Court whereby effect of the impugned order to the extent of direction to continue treating workers in service whose services have already been terminated, is suspended and Mr. Mahmood Abdul Ghani, Advocate for respondents has given undertaking that status quo will be maintained in respect of those workers who have only been charge-sheeted so far but whose services have not been terminated. The present petition appears to have been brought on same facts and circumstances and more or less for similar relief, as such the legal objection raised by the respondents regarding the present petition being barred by res judicata shall be considered at the time of final disposal of main petition, and I confine myself to dispose of the Application under Regulation 32(2)(c) of N.I.R.C. (P&F) Regulations, 1973 whereupon arguments have been heard. The prohibitory order sought by the applicant CBA is of general nature to restrain the respondents from terminating and dismissing the office-bearers of the applicant union including other workers employed by the respondents may be that any misconduct to have been committed by any of them, or by way of retrenchment bonafidely at this stage to be carried out the respondents to manage and reorganize the establishment to run it profitabley, which appears to be a right of the respondents as such the said right cannot be curbed by the Commission by issuing such aprohibitory order. Charge sheets, Annex.A/11 to A/25 show that they have been issued on the allegation of misconduct, threats to the management officials of dire consequences, instigation of the workers against the management for riotous and disorderly misbehaviour subversive to the discipline, raising slogans, use of abusive language and even assaulting and causing injury to the major (Retd) ZiaulHaquJaved Manager Administration and breaking glasses of his jeep and as such these alleged acts mentioned in the above said- charge- sheets cannot be termed as lawful activities of the office-bearers of applicant CBA or other workers acting on their instigation. The respondents have placed on record Form 'Y' which shows that on 24-11-2000 the workers have resorted to illegal strike and that is despite prohibitory order passed by this Bench of Commission in case filed by the respondents under section 22-A(8)(g) of the I.R.O,.
1969 wherein the office-bearers and members of the applicant CBA have been restrained from indulging in such acts. Initiation of disciplinary proceedings is a routine matter of the Industrial and Commercial Establishments and it cannot be termed as unfair labour practice under section 15 of the I.R.O. 1969 till it is tainted with mala fide due to trade union activities of the worker. Obviously initiation of disciplinary proceedings against the worker who acts in subversive of the discipline is right of the employer which cannot be curbed or taken away merely because the employee happens to be an office-bearer of the union. Mere service of charge-sheet or show-cause notice on the ground of misconduct cannot be treated as an act of unfair labour practice as taking part in trade union activities does not give licence to any worker, may be an office-bearer, to commit an act of misconduct. Charge sheets Annex. A/11 to A/25 issued by the respondents management prima facie do not appear to be mala fide act on the part of respondents to have been issued as result of trade union activities of the office-bearers and members of applicant CBA, but are on account of misconduct committed by them, as such it shall not be appropriate to confirm the ad interim prohibitory order, so as to curb the right of the respondents to proceed further on the said charge-sheets. Besides the Commission cannot pass any order to restrain the respondents generally from taking action against any of the worker, members or office-bearers of the applicant CBA, whether it' may be for the act of misconduct on their part.
' For the aforesaid reasons, I am of the view that the applicant CBA has not been able to make out a prima facie case for grant of prohibitory order, as such Application under Regulation 32(2)(c) of N.I.R.C. (P&P) Regulations, 1973 is dismissed and ad interim prohibitory order passed on 23-10-2000 by this Bench of Commission is hereby recalled subject to order dated 27-6-2000 passed by Hon'ble High Court in Constitution Petition No,816/2000 for maintaining status quo on the undertaking of Mr. Mehmood Abdul Ghani, Advocate forrespondents in respect of workers so mentioned in the said order. To come up on 15-10-2001 for filing affidavit-in-evidence by the appellant.
' Announced in open Court.