' Mr. ALI NAWAZ A. CHANNA (CHAIRMAN).---The petitioner union namely Jeway Pakistan Workers Union, in the establishment of Lakson Tobacco Company, the respondent No,1, has tiled this petition under section 22-A(8)(g) of I.R.O., 1969 on the facts and circumstances enumerated below.
2. That the petitioner is a union and CBA in the establishment of respondent No,1 and the name of respondent No,1 previously was Premier Tobacco Industries Ltd. But it was subsequently merged with Lakson Tobacco Company. The petitioner union has alleged that on 15-1-1997 Assistant Director Labour of respondent No,2 found that 134 workers were working in the establishment of respondent No,1 without appointment letters and they had the service of two to three years at their credit at the time of inspection but were not confirmed or regularized. Accordingly the Assistant Director Labour wrote a letter dated 15-1-1997 to the respondent No,1 Company to issue appointment letters to the said 134 employees and that they should be treated as permanent workers. The petitioner union has alleged that this letter/order of Assistant Director Labour was not complied with by the respondent Company hence they wrote two letters dated 5-3-1997 and 11-4- 1997 asking the respondent Company to comply with the order of Assistant Director Labour and to issue appointment letters to the said 134 employees and also to make them permanent but the respondent did not pay any heed to their letters also. The petitioners have alleged that the respondent company is not issuing the appointment letters to 134 workers and not confirming them because they are the members of their union. The petitioner union also alleged that the respondents Nos.1 & 2 are in collusion with each other and they are not accepting the status of 134 workers. The petitioner prayed for the following reliefs in his petition:--
(i) 134 workers of Annexure 'C' and 'D' be considered as regular members of petitioner union;
(ii) Respondent No,1 be directed to deduct union fund from the salary of above 134 workers;
(iii) The above 134 workers of Annexure 'C and Annexure 'D' be regularized and made permanent workers of respondent No,1 retrospectively; and
(iv) Any other relief as deemed fit be also granted.
' The respondent Company filed written comments in which they have denied various allegations of the petitioner Union. They stated that 134 workers, the list of which has been supplied by the petitioner, is not an authenticated list. They further stated that the Assistant Director had issued a false letter which was challenged by them before the Court of Civil Judge 1st Class, Rawalpindi who granted stay order against respondent No,2, Joint Director Labour. They stated that the matter is still sub judice before the Court of Civil Judge and, therefore'' 'the petition filed by the petitioner union is not maintainable. The Respondent No,1 also stated that they had replied the letter of Assistant Director vide their letter dated 18-1-1997. The respondent No,1 raised legal plea that the petition of the petitioner union is not maintainable as the union has no right to espouse the cause of the general workers.
3. The respondent No,2 Joint Director Labour also filed formal written statement in which he denied the allegations of the petitioner that the Labour Department is victimizing the petitioner union in collusion with respondent No,1 Company. After filing the written comments the Joint Director Labour did not take any further part in the proceedings.
4. During the proceedings of the case, Pakistan Labour Union and Awami Labour Union also made separate applications for joining them as parties and they were impleaded as respondents Nos.3 &
4. They also filed separate written statements but since they did not contest the case hence their contention is not necessary to be reproduced here.
5. Also during the proceedings the petitioner union made an application for appointment of Local Commissioner to verify the list of 134 workers annexed with the petition and the Court appointed Deputy Registrar (Judicial) Mr. Muhammad Athar to visit the site. Accordingly Mr. Muhammad Athar visited the site. He submitted two reports, dates of which not given by him,. He has stated that he found 40 workers in the factory premises of respondent No,1 Company and they gave different dates of their appointments.
6. Thereafter the case proceeded and the parties filed their respective affidavits-in-evidence.
Petitioner Union filed affidavits-inevidence of six witnesses namely Ali Aqdas, Raja Huma Abbas, Muhammad Adil, Muhammad Tauheed, Ashfaq Ahmad and Syed Ansar Abbas. Out of them they put three witnesses in witness box namely Muhammad Adil, Muhammad Tauheed and Syed Ansar Abbas while the remaining three were given up. The respondent No,1 Company filed one affidavit- in-evidence of Zahid Hussain and he was cross-examined by the learned Advocate for the petitioner union.
7. I have heard the learned Advocate for the petitioner and the learned Advocate for the respondent. I have gone through the entire record of the case and the evidence adduced by the parties. I have gone through the authorities cited by the learned Advocates.
8. The basic point which was most vigorously agitated by the learned Advocate for the respondent was that the petition has been filed by tJah. Union/CBA and by this way the union has espoused the individual causes of the workers. He argued that the union has no right to espouse the causes of the workers and that the union can file such causes for the enforcement of rights guaranteed to it (CBA) by any law, award or settlement. If there is any individual grievance of any worker or group of workers then it is for the workers to move individually but the CBA has absolutely no right to espouse their causes. In this connection he has placed reliance upon many authorities. As against this the learned Advocate for the petitioner did not cite any authority in support of his contention that the union in this case can espouse the cause of workers or that this petition is in such a nature where the CBA has right to file petition on behalf of the workers.
' I have considered this aspect of the ease and I am in agreement with the arguments of the learned Advocate for the respondent that the petitioner union has no right to espouse the causes of general workers. In this context the learned Advocate for the respondent first of all placed D reliance on the judgment of Supreme Court reported as 1992 SCM R 36. In this judgment the difference between section 25-A and section 34 has been elaborately stated as to what are the rights of the CBA and what are the rights of the individuals. It has been held that rights guaranteed to the union could be agitated in Court through section 34 while the rights guaranteed to individual workers could be agitated by individuals through section 25-A. In this authority it was elaborated as to what are the sections of Industrial Relations Ordinance which guaranteed a right to CBA. They have been stated to be sections 23,24,26,34 and 39 of I.R.O., 1969. In this authority it was held that "Combind interest of all the workers would be prime factor for raising dispute." This means all the workers which are employed in the establishment and not a group of workers. What is the meaning of all the workers has been defined in another judgment of Sind Labour Appellate Tribunal reported as 1982 PLC 1034 and it was held that total number of workers in the Company 1000 while grievance concerning drivers whose "total strength in Company only 7, matter, held one of individual grievance falling under section 25-A CBA not permitted to espouse causes of individual workers".
This judgment of Sindh Labour Appellate Tribunal has further clarified that the union cannot espouse the causes of group of workers but it may espouse causes of all the workers in the establishment by way of industrial dispute. In another authority reported as 1988 PLC 91 it was also held that "application under section 34 in espousing the causes of workmen/workers before Labour Court was not legally maintainable". In another famous judgment of Quetta High Court reported as 1986 PLC 751 which judgment was authored by his Lordship Mr. Justice Ajmal Mian, Acting Chief Justice as he then was, he has very elaborately discussed the rights of the union and individual rights of workers. He also very elaborately elucidated that at what stages the union has rights to project the causes of the workers and at what stage it has not. It will be very advantageous to reproduce the observations which are as under:-- "We are inclined to hold that there are four stages for a settlement in terms of labour laws, namely,
(i) raising of a demand by a Bargaining Agent for the benefit of workmen, (ii) negotiations between the Bargaining Agent and an employer, (iii) signing of a settlement by a Bargaining Agent on behalf of the workmen and by an employer and (iv) the enforcement of the settlement of any right guaranteed to workmen under any law, award or settlement. A Collective Bargaining Agent is to act on behalf of workers during the first three stages mentioned hereinabove, but it cannot enforce under section 34 of the I.R.O. Any right guaranteed or secured, inter alia, to any workman by or under any law."
' The above mentioned authority has made it very clear that for the enforcement of the rights of the workers, the CBA has no right. It has been made absolutely clear in this aurhority that the CBA may raise any industrial dispute on behalf of the workers but it cannot get the rights of the individuals implemented because there are the individual rights and it is for the individual worker to approach the proper Court.
9. In another authority of Sindh High Court reported in PLD 1979 Kar. 473, the Hon'ble High Court made very pertinent observations with respect to the rights of the union and individual rights. It will also be advantageous to reproduce the observations of the High Court, they are as under:-- "Interpretation that rights secured to workers can also be enforced by taking recourse to section 34.---Held, not permissible as it would result in reading subsections (2), (3) and (4) of section 25-A nugatory and allow workers to bypass procedure and period of limitation laid down therein.
Remedies provided under Sections 34 & 25-A independently ensure respectively to benefit of Unions and Workers for enforcement of their personal rights."
10. At the end of para. No,4 of the above said judgment the Hon'ble High Court also enumerated the rights which are enforceable by a CBA. They are produced below for ready reference: "The rights enforcible by a Collective Bargaining Agent under section 34 are those mentioned in sections 3(c)(d), 14,17,18,20,21,22, 23(a), 23(b), 24(2), 26, 30, 34(a) and 37 of the Ordinance only, while the remedy of the workers for the redress of their grievances lies under section 25-A of the Ordinance . "
11. There is yet a very famous judgment of Karachi Pipe Mills delivered by Full Bench of Sindh High Court reported as 1984 PLC 1359. This is a very important judgment and it is necessary to reproduce some extracts from the said judgment which will be decisive for the purpose of this petition as to what are the rights of the CBA and which rights could be enforceable by it through the Courts of law. The observations from the above quoted judgment are reproduced below:
(i) So far as rights of workmen or workers under any law are concerned, remedy, for seeking redress against violation there of has been provided in S.25-A which also give right to Collective Bargaining Agent to take his grievance to Labour Court deeming same as industrial dispute.
(ii) Rights guaranteed or secured to a worker under any law or any award or settlement have to be enforced in accordance with provisions of section 25-A. Where Collective Bargaining Agent could not have collective bargaining for enforcement of any right guaranteed or secured to a workman by or under any law other than Industrial Relations Ordinance, 1969, such rights of workman have to be enforced in accordance with provisions of section 25-A and not under section 34.
(iii) If more than one workmen are denied any right guaranteed or secured to them by any law, award or settlement they can directly or through Collective Bargaining Agent file a joint application for seeking redress but such application has got to be made under S.25-A (10) and not S.34.
(iv) Merely because Collective Bargaining Agent has a right to represent all or any workman would not give such agent a right to take matter covered under S.25-A to Labour Court er S.34 for the provisions of S.25-A would become redu ant and conditions or limitations provided in S.26-A w ld also disappear for under S.34 no such conditions or limit ions are provided.
(v) Application of Collective Bargaining Agent for informant of any right guaranteed or secured by or under any la or any award of settlement. Such proceedings are in nature of execution proceedings so far as enforcement of any right s ured or guaranteed to Collective Bargaining Agent under an law or award or settlement was concerned. Such provisions would not be restored to enforce any right secured or guaraned to a worker by or under any law or any award or settle me for that will not be execution proceedings.
(vi) Sections 23 (12)(b) while vests a right in Collective Bargaining Agent to represent all or any of workmen in any proceedings would not give Collective Bargaining Agent a right to enforce a right vested in a workman in its own name for to enforce a right by any proceedings and right to represent all or any workman in any proceedings are two different processes.
(vii) Views of Appellate Tribunals that Collective Bargaining Agent was entitled to support common cause of workmen but not cause of an individual workman and that Collective Bargaining Agent could even enforce right of an individual worker under section 34. Such distinction held, was not warranted in law. Collective Bargaining Agent if could not enforce right of an individual workman under any law then for same reasons it could not under S.34, enforce right of a number of workmen.
12. The above observations have made it very abundantly clear that the union has no right to espouse the causes of the workers. By now, in view of the above cited judgments, it has been a settled principle of law that CBA cannot espouse the causes of workers hence the above mentioned petition of the petitioner union is not maintainable in law and is liable to be dismissed on this score alone.
13. The learned Advocate for the respondent then argued that initially the petition was filed by Raja Huma Abbas who at the time of filing of petition was the General Secretary of petitioner union but the office-bearers of the said union have since been changed and thus Raja Huma Abbas is no more the office-bearer of the union, therefore, with the removal of Raja Huma Abbas as Secretary General this petition has become infructuous. This factual position was not denied by Mr. Abdul Hafeez Amjid, Advocate for the petitioner., therefore, the submissions of Mr. Mushtaq Hussain Bhatti learned Advocate for the respondent has sufficient force. Even otherwise from the record I have found that this gentleman Raja Huma Abbas has filed an application for withdrawal of petition on 17-12-2000 on the ground that they have amicably settled their dispute with the respondent Company and he does not want to proceed with this petition but his application for withdrawal of this petition was not allowed for various reasons. First of all this application for withdrawal of petition came up for disposal before my learned predecessor Mr. Justice (Retd.) Zia Mehmood Mirza on 19-12-2000 but he refused to allow withdrawal on the ground that the Advocate of Raja Huma Abbas was not present and that he had not signed the withdrawal application. He, therefore, adjourned the petition to 9-1-2001. On this date the petitioner was absent but the petition was assigned to Mr. Ghulam Nauman Sheikh, learned Member who was originally incharge of this petition. Mr. Ghulam Nauman Sheikh also gave 2/3 dates for consideration of this withdrawal application. Again the matter came in charge of Mr. Muhammad Shaukat Awan, learned Member who also gave two dates for consideration of withdrawal application but then fixed the matter for recording of evidence. Accordingly the matter was proceeded by Mr. Abdul Qayyum Raja, learned Member who recorded the evidence of petitioner's witnesses and respondent's evidence was recorded be me. From this fact it is clear that the petitioner Raja Huma Abbas had lost his interest in the petition after he was replaced by another General Secretary but the fact remains that he had filed an application for withdrawal of the petition and thereafter he did not attend the Court for so many dates. Raja Huma Abbas was not examined as witness although he was signatory to the petition but other witnesses who had no concern whatsoever with this petition filed their affidavits- inevidence and they were cross-examined.
14. Syed Ansar Abbas in a subsequent charge of office-bearers became the President of the petitioner Union but he without amending the title came directly in the witness box. His status to give evidence is doubtful. In any case it can very safely be presumed that the man who had filed this petition did not pursue this petition and in fact he filed application for withdrawal of the petition, but the petition was proceeded by another man who was subsequently elected as President of the union. The Secretary General who was elected in a subsequent change did not come forward to proceed with this case. Even he was not cited as witness. This shows that the new General Secretary was also not interested in pursuing this petition. Even there is no resolution authorizing Syed Ansar Abbas to proceed with this case and give evidence. In my view the evidence given by the newly elected President Syed Ansar Abbas is not proper in law and his evidence has no legal value and he had no locus standi to continue this petition. On this score the contention of learned Advocate for the respondent has sufficient force that after change of office- bearers of the petitioner union, this petition had become infructuous and should not have proceeded at all.
15. The learned Advocate for the petitioner has placed heavy reliance upon the report of Assistant Director Labour, who found 134 workers without appointment letters and who were not confirmed although 2/3 years service was at their credit. This has been the basis for filing of this petition. It need not be reiterated that the NIRC has jurisdiction to prevent the occurrence of acts of unfair labour practice but has ho jurisdiction to determine the illegalities, validity, irregularity or mala fides of any action. If the employees of the petitioner union were not issued appointment letters, or if they were not regularized, or not confirmed or not made permanent, then it might an illegality, irregularity or even mala fide act on the part of the respondent management but that will not constitute acts of unfair labour practice. It is for the Labour Court to go into such illegalities or irregularities. It was also for the individual workers who were affected who had grievance for not being given appointment letter or for not being confirmed to have approached the Labour Court for redressal of their individual grievances. The petitioner union bringing the causes of those workers has no right to do so. I would not like to go into the details whether the list provided by the petitioner is legal or authenticated or whether action of the Assistant Director Labour was legal or mala fide as such dispute is before the civil Court and it may prejudice, the case of any party before that Court. Suffice it to say that the Deputy Registrar who visited the Factory has not stated in his report that 40 workers were not issued appointment letters or they were not confirmed. He has made a very confused report. It will be necessary to reproduce his words: "However I visited the factory in the presence of Mr. Muhammad Samdani, Time Keeper where I found following 40 persons working in the shift started from 1400 hours. All the 40 persons were verified by Mr. Ghulam Samdani and these persons stated different period of their service which is mentioned against the nanme of each person".
' In this way he has not stated that those workers complained to him that they have not been issued appointment letters or that they have not been regularized by the Company. Moreover this Deputy Registrar had located 40 persons, Joint Director Labour vide report dated 30-12-1996 located 60 such workers while Assistant Director located 134 workers. All these reports are in conflict with each other and, therefore, they are not reliable reports and therefore, they cannot be believed.
16. A perusal of whole petition of the petitioner would reveal that not a single word has been used about unfair labour practice. No where it is stated that the respondent has committed any act of unfair labour practice. Even, there is no prayer that the acts of respondent No,1 may be declared as acts of unfair labour practice. The petition has been drafted as if it is filed before a Civil Court or Labour Court. It is settled principle of law that only on ingredients of unfair labour practice the Commission can assume jurisdiction. Even otherwise a perusal of the petition would show that the petitioner has alleged the action of respondent No,1 to be illegal act and not acts of unfair labour practice. Merely not giving the appointment letters to the workers would not make the acts of the respondent No,1 as acts of unfa'r labour practice. As already stated it might be an illegal act or it might be mala fide act but it does not fall within the preview of section 15 of the I.R.O. The learned Advocate for the petitioner has argued that the 134 workers are not being given appointment orders because they are the members of petitioner union. Since the said 134 employees are not permanent employees hence it is doubtful if they can be members of the petitioner union. The ingredients of section 15 are that no employer should prohibit any person from becoming member of any union. There is no allegations that these 134 workers were prevented by respondent No,1 to become the members of any union. Accordingly there is no ingredient or element of any type of unfair labour practice alleged against respondent No,1 hence without pleading the acts of unfair labour practice this petition is not maintainable in law.
17. Both the learned Advocates for the parties have attacked the evidence of other side but from the above discussed legal position it has become clear that this petition is not maintainable hence it is not necessary to go into the minute details of evidence as to what are the contradictions and as to where the affidavits-in-evidence were signed and where the affidavits were got sworn, and from whom. That, in my view, will be an exercise in futility.
' In view of above discussed facts, circumstance and legal position, I am of considered view that the petition of the petitioner union is not maintainable and it is liable to be dismissed. Accordingly the petition is dismissed herewith.