' GHULAM NAUMAN SHAIKH (MEMBER).---This is petition under section 49(4)(e) of the I.R.O., 2002 along with an application under Regulation 32(2)(c) of NIRC (P&F) Regulations, 1973 supported by affidavit .Filed by Habib Bank Employees Union, through its General Secretary, petitioner against the respondents.
2. The facts of the case as stated in the petition are that the petitioner is registered trade union and has status of CBA in the respondent establishment since 1993. In the year 1994 respondent No,1 had published vacancies in the newspaper for the post of cashier and guards which was challenged by the Habib Bank Employees Federation of Pakistan through a petition filed under section 34 of the I.R.O., 1969 bearing No,7(60)/94 and 24(278)/94 before the learned Member, N.I.R.C. Islamabad on the ground of non-compliance of the requirements of para. 145 of the Fourth Wage Commission Award, 1984 which was allowed by order dated 17-11-1994. The order of the learned Single Bench was assailed before the Full Bench of N.I.R.C. In Appeal No,12(93)/94 which was dismissed by the Full Bench by order dated 22-7-1997. The order of the Full Bench of has been challenged by the respondent No,1 in Constitution Petition No,1703/97 before the Hon'ble High Court of Sindh, Karachi which is pending. It is stated that in para. 145 of the Fourth Wage Commission Award of 1984 it was decided that at least one child of a deceased employee, who satisfies the qualifications for entry into service, may be appointed in the service of the Bank or Financial Institution concerned against the first available vacancy, in preference to other candidates. It is stated that the said facility has not been changed in Fifth and Sixth Wage Commission Awards and the same continued, as such the employees of respondent No,1 are free to avail vacancies in preference to others. It is submitted that in utter violation of law and the said Fourth Wage Commission Award of 1984 the respondents with mala fide intention have published vacancies in newspaper daily Jang on 21-8-2002 with a preferential status to those who belong to Sialkot, Dera Ismail Khan, Gujrat, Jehlem and Makran. It is alleged that respondent No,1 with mala fide intention called a meeting of clerical staff, being members of petitioner union for convincing them to change their sympathy from the petitioner Union to their rival group and offered them promotion in case they leave the petitioner union the CBA, which amounts to an act of unfair labour practice. It is submitted that a meeting was held between the management and CBA, wherein it was decided that while making direct recruitment after promotions, preference will be given to the sons and daughters of the deceased, retired and other employees if they come up to the level of other candidates and the said minutes of the meeting held on 14/15th January, 1990 were recorded, photo copy whereof has been tiled as Annex.
A/6. It is submitted that the respondent No,1 in collusion with some members of the CBA who have changed their sympathy because of inducement in adverse interest of the employees are going to conduct test of Teller on 10-11-2002 in 20 cities, which amounts to an act of unfair labour practice. It is submitted that Wafaqi Mohtasib also passed order dated 5-10-1987 that son of the deceased should be appointed in place of his deceased father, photocopy whereof is filed as Annex.A/8. It is alleged that the respondent No,1 had offered Golden Hand Shake Scheme on 23-8-1997 and VSS Scheme 2001 and for forcible compliance of the same, the respondent No,1 with mala fide intention issued posting and transfer letters of employees to make impossible for them to continue their employment and to,have no other option but to avail GHS or VSS Scheme, photo copy of transfer letters dated 16-6-2001 is filed as Annex. A/11. It is submitted that services of 8000 employees were terminated under GHS Scheme dated 23-8-1997 and services of about 3500 employees were terminated under VSS, 2001. It is submitted that since 1995 the respondent No,1 has not made promotion of employees despite several promises since so many years. It is alleged that the respondents with mala fide intention and just to lay down the position of CBA in the eyes of employees for gaining sympathy of the supporters of the CBA by giving them opportunity for appointment of their relatives have published the vacancies of Teller vide Annex.A/3. It is prayed to hold that for the appointment of any post in the Habib Bank Limited preference will be given to the children of the deceased, retired and the employees in service if they come up to the level of the other candidates, hold that the publication and notification for the vacancies of Tellers mentioned in Annex.A/3 are illegal, unlawful and in violation of the Wage Commission Award and decision taken in minutes and as such the respondent No,1 cannot proceed any more for such appointments, to direct the respondents to give preference to the children of the employees, deceased, retired employees of Habib Bank Limited throughout the country as to others if they come up to the same level.
3. On presentation of the main petition, my learned predecessor had passed ad interim prohibitory order on 8-11-2002 whereby the respondents were restrained from taking the interviews and tests of the candidates who had applied for the post of Teller till the next date.
4. The respondents filed reply statement with preliminary legal objection. The legal objections raised were that the allegations stated in the petition do not make out a case of unfair labour practice as such this Commission has no jurisdiction and further the petition is barred by principle of res judicata. On the facts the respondents denied the allegations of the petitioner-Union levelled by it in the petition. However the respondents admitted that petitioner-Union is CBA in the respondent No,1 Establishment. Filing of application under section 34 of the I.R.O., 1969 by the Habib Bank Employees Federation of Pakistan before the Single Bench, NIRC, Islamabad and against that order appeal filed by respondent No,1 before the Full Bench of NIRC and its dismissal and filing of Constitution Petition No,1703 of 1997 by the respondents now pending before the Hon'ble High Court of Sindh, Karachi also is admitted. Regarding the meeting as referred in para. 7 of the petition, the respondents submitted the meeting was held in connection with promotion of clerical staff and denied to have convinced clerical staff to change sympathy from the petitioner-Union to their rival group and to have offered promotion to the said employees in case they leave CBA. The same also are said to be false and misconceived. With regard to minutes of the meeting between the Management and CBA on 14/15 of January, 1990 about the decision that while making direct recruitment after promotion, preference will be given to the sons and daughters of the deceased, retired and other employees if they come upto the level of other candidates as referred in para. 8 of the petition, the respondents denied the same as misconceived and submitted that the same ground which is being urged in the present petition was taken in the application filed before the Sindh Labour Court No,V, Karachi who had dismissed the same by order dated 20-4-1995, copy whereof is filed as Annex-E. It is submitted that no appeal has been filed against the said judgment which has attained finality and this fact has been concealed by the petitioner-Union. With regard to order passed by the Hon'ble Wafaqi Mohtasib, it is submitted that order was passed when Wage Commission Award was in operation. It is submitted that Wage Commission Award only ordered consideration and did not order recruitment to the exclusion of everybody. It is submitted that no provision exists in I.R.O. 2002 for constitution of Wage Commission. It is submitted that various memorandum of settlements have been signed between the petitioner-Union and the management and copies of the said including current have been filed as Annex.A&B with the reply statement.
5. My learned predecessor proceeded to hear arguments of the learned Advocates for the parties.
During course of arguments Mr. Shahid Anwar Bajwa, learned Advocate for the respondents sympathetically made an offer that the respondents are still prepared to accommodate the children of deceased and retired employees if they make applications and if they qualify in written test and they will be given preference to those applicants who qualify. Finding this offer to be fair and honest and in the best interest of children of deceased and retired employees my learned predecessor allowed time to Syed Ashfaque Hussain Rizvi, the then learned Advocate for the petitioner union to consult his client whether they accept this offer or not, but Syed Ashfaque Hussain, learned Advocate for the petitioner-Union did not place on record acceptance of the petitioner-Union to offer of Mr. Shahid Anwar Bajwa, learned Advocate for the respondents.
Therefore my learned predecessor passed order dated 24-12-2002, whereby he disposed of the petition along with stay application recoding his observation and direction in para. 6 of the order which is reproduced as under:- "6. From the sympathy of Mr. Shahid Anwar Bajwa I am satisfied that his offer is fair and honest and if the respondents accommodate the children of above mentioned class then in my opinion it will be in the best interest of their children and no further relief could be granted by this Commission even if the case is proceeded or even if the evidence is recorded. Accordingly I pass following order:
(i) That the respondents will advertise in which they would specifically invite fresh applications from the children of deceased and retired employees of the respondents-Bank.
(ii) That the respondents will take written test from those who apply for the above posts and if they qualify the conditions prescribed for the posts.
(iii) The successful candidates in the written test will be interviewed with those who are waiting for oral interview.
(iv) If the marks of any candidate of deceased and retired employee come equal to any of the candidates who have already been interviewed the preference may be given to the children of deceased or retired employees.
(v) The above said whole exercise may be completed within 20 days of this order.
6. The respondents dissatisfied with the order dated 24-12-2002 passed by my learned predecessor challenged the same in Appeal No,12(38)/2002-K, before the Full Bench, which set aside the order dated 24-12-2002 passed by my learned predecessor and remanded the case to this Bench for decision afresh after providing full opportunity of hearing to the parties by recording observation in para. 7 of the order dated 13-10-2004, which are reproduced:-- "Since large number of candidates inclusive of children of employees had already gone through the test conducted by the Institute of Bankers as such in the circumstances the direction to advertise afresh would not only cause inconvenience and despondency to the large number of candidates but would also entail expense running into lacs of rupees. The learned Member while deciding the issue has stretched the concessional statement as already stated not only to the detrimental of the Bank but also to the large number of candidates without providing them an opportunity of evidence."
7. On remand Mr. Kashif Ghafoor Mangi, learned Advocate for the petitioner-Union and Mr. Shahid Anwar Bajwa, learned Advocate for the respondents advanced their arguments without adducing their evidence and not dilating on the fact that the opportunity of hearing to the parties will mean to offer an opportunity to the parties to lead their evidence which while the case was fixed on 23-11- 2004 for order, was attended and observed by me while going through the order of Full Bench dated 13-10-2004 so as to know its meaning as such in order dated 23-11-2004 it was observed as follows:-- "In view of the order of the Full Bench opportunity of hearing to the parties means to afford an opportunity to the parties to lead their evidence, so as to determine whether there is an element of unfair labour practice as alleged in the petition or there is no element of unfair labour practice as stated in the reply statement which may confer the jurisdiction to the Commission, can now only be decided after the evidence is adduced by the parties on their respective contentions as the same also has been observed by the Full Bench which in my view cannot be decided on mere hearing the arguments of Advocates of the parties, Accordingly no order either way of disposal of the main petition as well as stay application can be passed at this stage without affording the opportunity to the parties to lead their evidence. To come up on 29-11-2004 for filing affidavit-in- evidence by the petitioner."
8. The petitioner-Union filed affidavit-in-evidence of Raja Fakhar Ahmed, General Secretary and Muhammad Ali Memon, President of the union. They were cross-examined by Mr. Shahid Anwar Bajwa, Advocate for the respondents. Mr. Shahid Anwar Bajwa, Advocate for the respondents submitted a statement that respondents did not want to produce any evidence as such the petition was fixed for final arguments.
9. Mr. Abdul Ghafoor Mangi learned Advocate for the petitioner in his oral as well as written arguments has contended that demand relating to employment of child of deceased employees of the Bank was considered by the Wage Commission and the decision whereupon was made by the Wage Commission in para. 145 of the Wage Commission Award, 1984, which through Notification was published in Gazette of Pakistan of August, 27th, 1984 which has been filed with written arguments and is reproduced: "145. It has been represented to us that in the event of death of employees while service, even after taking into account the payment from provident fund, pension and gratuity, families of the deceased face considerable financial difficulties. As a measure of providing further financial help to families of deceased employees at least one child of the deceased member of the staff should be appointed by the Bank or Financial Institution concerned against the first available vacancy in the grade for which the child would be eligible under the normal rules. The demand is fair and reasonable and we decide that at least one child of a deceased employee, who satisfies the qualifications for entry into service, may be appointed in the service of the Bank or Financial Institution concerned against the first available vacancy, in preference to other candidates."
10. Mr. Abdul Ghafoor Nangi, learned advocate for the petitioner has contended that since the respondent-Bank did not consider the decision of the Wage Commission laid down in para. 145 of the Wage Commission Award, 1984, as such the petitioner union has approached the Commission.
It is contended that decision made by the Fourth Wages Commission, 1984 was not changed in subsequent Fifth and Sixth Wage Commission Awards as such this facility to the deceased employees of respondent No,1 Bank in para 145 of the Fourth Wage Commission Award notified in Gazette of Pakistan dated August 27, 1984 will continue to have force unless the said facility under the notification is withdrawn and superseded by subsequent Wage Commission Award. The Bank and financial Institutions including respondent No,1 Bank are bound by the decision of Wage Commission. It is submitted that the respondents with mala fide intention have got published the vacancies of Tellers in newspaper daily Jang dated 25-8-2002 with preferential status to those who belong to Sialkot, Dera Ismail Khan, Gujrat, Jehlem, and Makran. It is contented that the management of.Respondent No,1 with mala fide intention called a meeting of clerical staff being members of the petitioner-Union for convincing them for changing sympathy from the petitioner- Union to their rival group and have offered to the said employees for promotion in case they leave the petitioner union, which act of the respondents amounts to an act of unfair labour practice.
11. This argument has been advanced in the written argument by Mr. Abdul Ghafoor Mangi, learned advocate for the petitioner as mentioned in para. 7 of the petition, but this has not been stated either by Raja Fakhar Ahmed, General Secretary or Muhammad Ali Memon, President of the petitioner-Union in their affidavits-in-evidence as such there is no evidence in this regard, Mr. Abdul Ghafoor Mangi, learned Advocate for the petitioner-Union also submitted that the meeting was held between the Management and the CBA on 14/15th of January, 1990 whereby it was decided that while making direct recruitment after promotions, preference will be given to the sons and daughters of the deceased, retired and other employees if they come up to the level of other candidates. It is submitted that respondent No,1 in collusion with some members of CBA who have changed their sympathy from the petitioner-Union in adverse interest to the employees, in utter violation of Fourth Wage Commission Award and decision taken in the meeting dated 14/15th of January, 1990 is going to conduct test for the post of Teller on 10-11-2002 in 20 cities. This argument reiterating the fact mentioned in para. 9 of the petition has not been stated in affidavits- inevidence filed either by Raja Fakhar Ahmed General Secretary or Muhammad Ali Memon, President of the petitioner-Union, as such the petitioner has failed to produce any evidence to substantiate this version. Mr. Abdul Ghafoor Mangi, learned Advocate for the petitioner-Union also submitted in his written arguments that respondents No,1 had offered GHS on 23-8-1997 and VSS in 2001 and for its forcible compliance with mala fide intention issued posting and transfer letters of the employees so as to make impossible for the employees to continue their employment, thereby have terminated the services of 8000 workers under GHS and of 350 workers under VSS. Further it is submitted by Mr. Abdul Ghafoor Mangi, learned Advocate fa the petitioner union in his written arguments that respondent No,1 has not promoted the employees since 1995 and the post advertised by respondent No,1 can be filled up by staff waiting for promotion since so many years but the respondents with mala fide intention just to lay down the position of CBA in the eyes of employees and for gaining sympathy of the supporters of the CBA by giving them opportunity for the appointment of their relatives have published vacancies of Tellers mentioned vide Annex. D filed with the written arguments.
12. This argument is reiterated from para. 14 of the petition but the same has not been stated in affidavits-in-evidence either by Raja Fakhar Ahmed, General Secretary or Muhammad Ali Memon, President of the petitioner-Union, The contents of the petition by itself are not evidence, the same require to be proved by producing evidence, but no evidence has been adduced by the petitioner.
13. Mr. Shahid Anwar Bajwa, learned Advocate for the respondents has contended that the respondents have nowhere stated that they will not give preference to the children of deceased employees if they get equal marks in the test. Be has contended that the petitioners have not adduced any evidence regarding unfair labour practice alleged by them against the respondents in the petition. The jurisdiction of National Industrial Relations Commission is dependent upon the allegation and proof of unfair labour practice as enunciated under section 63 of I.R.O.
2002. He has contended that it is not pointed out in the arguments by Mr. Abdul Ghafoor Mangi, the learned advocate for the petitioner that in what clause of S.63 of the I.R.O., 2002 the case of the petitioner falls, as such the ingredients of S.63 of the I.R.O., 2002 are lacking in the present petition.
In support of his contention he has placed his reliance on judgment of Hon'ble Supreme Court in case of Iftikhar Ahmed and others v. President, National Bank of Pakistan and others reported in PLD 1988 Supreme Court 53, Malik Nazar Hussain v. National Bank of Pakistan and another reported in 2003, PSC 1209, Mr. Shahid Anwar Bajwa, learned advocate for the respondents contended the Wage Commission was constituted under section 38-A of I.R.O., 1969. First award was given by the Wage Commission in 1975, second in 1978, third in 1981, fourth in 1984, fifth in 1987, sixth in 1990 and the seventh being last in 1993, which expired on 31-12-1995. The wage commission had to give its decision under section 38-A(3) of I.R.O., 1969 which was to be published by the Federal Government under section 38-C of 1969. Under section 38-D of I.R.O., 1969, the decision of the Wage Commission shall be deemed to be award of Full Bench of the Commission. It is contended that seventh Wage Commission Award 1993 was for three years and it expired on 31-12-1995. Thereafter no Wage Commission Award has come. It is contended that under subsection (3) of S.38-C no industrial dispute shall be raised in respect of any matter which is under consideration of the Wage Commission nor shall any dispute be raised in respect of any matter on which the decision of wage commission is in operation. It is submitted that after expiry of seventh wage commission award Habib Bank Employees Federation of Pakistan has signed settlements with the management of respondent No,1 which has been filed as Annexed A & B with reply statement which show that Habib Bank Employees Federation of Pakistan including the petitioner-Union was conscious that no Wage Commission Award was in operation. It is contended that Industrial Relations Ordinance, 1969 which contained the provision of Wage Commission under section 38-A to 38-I has been repealed by I.R.O., 2002 and no corresponding provisions have been made in I.R.O.
2002, as such there exists no.Wage Commission and its provisions under I.R.O., 1969 are not saved by section 80 of I.R.O, 2002 which is with regard to repeal savings, as under subsection (2)(b) of section 80 anything done, rules made, notification or order issued, officer appointed, Court constituted, notice given, proceedings commenced or other actions taken under the repealed Ordinance shall be deemed to have been done, made, issued, appointed, constituted, given, commenced or taken, as the case may be under the corresponding provisions of this Ordinance.
Under the circumstances since the I.R.O., 1969 containing provisions of Wage Commission has been repealed and there is no corresponding provisions with regards to wage commission in I.R.O. 2002, as such whatever is stand in the Wage Commission Award, 1984, the petitioner union cannot take benefit of the same. In support of his contention he has referred Maxwell on the Interpretation of Statutes by P.St.J. Langan, page 16, the relevant lines are The common law rule was that if an Act expired or was repealed it was regarded, in the absence of provisions to the contrary, as having never existed, except as to matters and transactions past and closed. He has also cited judgment of Division Bench of Hon'ble Dacca High Court in the case of Eastern Pakistan Railway Workshop v.
(1) Chairman, East Pakistan Railway Board and (2) Secretary, East Pakistan Railways Board reported in 1968 PLC 445 wherein at page 448 it is held that it is well-settled that anything done or action taken, etc. Under particular statute ceases to possess any validity and is to be treated as non- existent (except as to transactions past and closed) along with the repeal of the statute unless it is saved either by some express provision in the repealing statute or under General Clauses Act, Central or Provincial as the case may be.
14. Next it was contended by Mr. Shahid Anwar Bajwa, learned Advocate for the respondents that the Raja Fakhar Ahmed, General Secretary of the petitioner-Union in paras. Nos.4, 5, 6 and 7 of his affidavit-in-evidence has stated about appointments made by the respondents through Credit and Commerce Consultants Private Limited (CCC) and Collateral Service Limited (CBL) and Muhammad Ali Memon, President of the petitioner-Union has also stated regarding appointments made by the respondents through CSL but the same have not been said in the petition, as such nothing can be stated in the evidence beyond the pleadings To that extent their affidavits-in-evidence are not to be considered. In support of his contention he has placed his reliance on judgment of Hon'ble Supreme Court of Pakistan in case of Binyameen and 3 others v. Chaudhry Hakim and another reported in 1996 SCM R 336, wherein at page 340 it has been held that it is well-settled principle that no evidence can be led or looked into in support of a plea which has not been taken in the pleading. A party is required to plead facts necessary to seek relief claimed and he would be entitled to produce evidence to prove those pleas. Variation in pleading and proof is not permissible in law. Mr. Shahid Anwar Bajwa, learned Advocate for the respondents has also cited a judgment of Hon'ble Supreme Court of Pakistan in case of Province of Punjab through Chief Secretary and 5 others v. Malik Ibrahim and sons and another reported in 2000 SCM R 1172, wherein at page 1176 it has been held that it is well-settled that the parties are not entitled to set up a case or to lead evidence on issues which does not arise from their pleadings. Indeed the parties are legally bound by their pleadings and their evidence must be restricted to the points in controversy in the strict sense.
15. Mr. Abdul Ghafoor Mangi, learned Advocate for the petitioner in reply to arguments of Mr. Shahid Anwar Bajwa, learned Advocate for the respondents has submitted that these facts of appointment of some persons through CCC and CSL by respondent No,1 has arisen after filing of the petition, as such the same has been stated in affidavits-inevidence. Mr. Shahid Anwar Bajwa, learned Advocate for the respondents then contended that any fact which has arisen after filing of the petition, the petitioner should have made application to amend the petition and to have made these facts para. Of the petition and then to have adduced evidence otherwise it is not permissible in law.
16. I have given my anxious consideration to the submission of both the learned Advocates for the parties and have gone through the petition, reply statement, evidence adduced by both the parties and the documents filed by them.
17. I agree with the submission made by Mr. Shahid Anwar Bajwa, learned Advocate for the respondents that the evidence adduced beyond the pleadings is not permissible under the law and the subsequent events and facts after filing of the petition if have arisen, the petitioner-Union should have made the same as part of the petition by filing an application to amend the petition, as such the events and facts which according to the petitioner-Union have arisen subsequent to filing of the petition cannot be made part of the affidavits-in-evidence when the same are not stated in the petition. It is admitted by Raja Fakhar Ahmed in cross-examination that the contents of paras 4, 6, 7 and 8 of his affidavit-in- evidence are not part of main petition, but he voluntarily stated that these facts occurred after filing the petition or if these were in existence at the time of filing of the petition, the same were not in their knowledge. This shows that he is not certain as to when the facts stated in paras. 4, 6, 7 and 8 were existed. Further in cross-examination Raja Fakhar Ahmed has admitted that he has not stated the words in his affidavit-in-evidence alleging unfair labour practice, but according to him in the main petition he has alleged unfair labour practice.
Mentioning allegation of unfair labour practice in the petition will not suffice as the petition is not the evidence. The allegations are required to be proved by adducing evidence, which the petition- Union has failed to produce as nothing has been said by any of the petitioner's witness, namely, Raja Fakhar Ahmed and Muhammad Ali Memon. The National Industrial Relations Commission is empowered to hear the cases where there is element of unfair labour practice against the employer, the ingredients whereof have been laid down in section 63 of the I.R.O., 2002. No such ingredient of section 63 of I.R.O. 2002 is spelled out from the petition and absolutely no evidence regarding unfair labour practice has been adduced by the petitioner-Union. Reliance can be made to the judgment of Hon'ble Supreme Court of Pakistan 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 cases which the Benches are empowered to hear 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 employer as well as workmen.
18. Mr. Shahid Anwar Bajwa, learned Advocate for the respondents has contended that principle of res judicata applies to the proceedings before this Commission and Labour Court although there is no provision in I.R.O., 2002, for its application. He has contended that matter and issue which has been pleaded in the present petition is the same which was pleaded by the petitioner-Union in Application under section 34 of the I.R.O., 1969 filed by it before Fifth Sindh Labour Court, Karachi which was dismissed by order dated 20-4-1995, the same having not been challenged in appeal has thus attained finality, as such the petition is hit by principle of res judicata. In support of his contention he placed his reliance on D.B. Judgment of Decca High Court in case of Pakistan Tobacco Co. Ltd., Chittagong v. The Chairman, Second Labour Court of East Pakistan and 18 others reported in 1972 PLC 190, D.B. Judgment of Lahore High Court in case of Works Manager, WAPDA Electrical and Mechanical Workshop, Lahore v. Labour Union reported in 1977 PLC 6 and judgment of Hon'ble Lahore High Court in case of Lahore ' Development Authority v. Labour Court No,1 Lahore and others reported in 1983 PLC 1284.
19. The perusal of order dated 20-4-1995 passed by Fifth Sindh Labour Court, Karachi shows that petitioner-Union had filed the application under section 34 of I.R.0., 1969 in respect of the right of the workers relating to the recruitment of sons/daughters of the decreased/retired employees under Article 1(b) of the alleged agreement to have been arrived between the CBA and the Management on 17-4-1994, whereas in the present petition, the main emphasis and claim of the petitioner-Union is relating to the decision of Wage Commission in its Award 1984, whereby in para. 145 the children of deceased employees of the Bank were entitled to preferential treatment if they come to the level of other candidates in respect of appointment. Besides that the petitioner-Union has also claimed employment to children of deceased and retired employees of the Bank by virtue of minutes of meeting held on 14/15 of January, 1990, as stated in para of the petition, as such only to the extent of the said contents of para 8 of the petition decision of the Fifth Sindh Labour Court, Karachi said to have attained finality, as no appeal to have been filed by the petitioner union, attracts principle of res judicata against the petitioner union but relating to their claim as contained in para 145 of the Wage Commission Award, 1984, the petition is not hit by res judicata, as the principle of res judicata enunciated under section 11 of C.P.C. Applies when the matter has been directly and substantially in issue in a former suit between the same parties and it has been heard and finally decided by the competent Court, hence the Court is barred to try any such issue subsequently raised in the subsequent suit.
' For the aforesaid reasons since the petitioner-Union has failed to establish a case of unfair labour practice against the respondents and scope of jurisdiction of N.I.R.C. Is limited only to the extent when there is element of unfair labour practice, the instances whereof are laid down under section 63 of the I.R.O., 2002, as such the petition being not maintainable and not within the jurisdiction of this Commission, is hereby dismissed.
' Announced in open Court.
' Given under my hand and seal of the Commission, this 10th day of March, 2005.