' ALI NAWAZ A. CHANNA (MEMBER).---The petitioner-Union namely Mazdoor Union Faran Sugar Mills have filed this petition under section 49(4)(e) of the I.R.O., 2002 through their General Secretary Abdul Karim Mangwano against the respondents on the following facts and circumstances.
2. That the petitioner's union is registered and is also CBA in the establishment of respondents. The petitioners have alleged that the respondents from the very inception are against the trade union activities in their establishment and they have always been pressurizing the members of the union not to carry out their trade union activities. They have alleged that the respondents had been pressurizing their office-bearers to resign from the union otherwise they will be terminated from service. They gave instances that when their General Secretary Abdul Karim Mangwano did not resign from the union, he was dismissed from service and he had to file grievance petition before the Labour Court where it is still pending. They have further stated that it is the practice of the respondents to show losses in each year to make a ground for retrenchment of the employees.
They have further alleged that in 2001-2002 the respondents had shown losses in their balance sheet which were challenged by the petitioner union and such application was given to the Director Labour for re-audit of the accounts which application is still pending with the Labour Department. The petitioner union has alleged that for the season for 2002-2003 the union had unilaterally offered to the respondents some measures in good faith to over come the losses or difficulties being faced by the respondents. In this connection they executed settlement on 30-12- 2002 by which the union waived their right of bonus and annual increments and also agreed for the payment of electricity bills. According to them due to this settlement from 1-1-2003 to April, 2003 the factory functioned without any hindrance or without any problem. Their case is that crushing came to an end on 11-4-2003 whereafter seasonal and retainees workers were relieved.
They have alleged that in the previous years the workers were being sent on forced leave after the conclusion of season but this year a settlement was reduced into writing whereby it was agreed that the workers will be sent on en bloc holidays from 18-4-2003 to 25-5-2003 and those who have no leave in their credit will be granted advance leave from their coming year. It was also decided that payment for the month of April, 2003 will be made on 17-4-2003. The petitioners have further alleged that on 17-4-2003 at about 11-30 a.m. The General Secretary and President of the union were called by respondent No,1&2 in their office and impressed upon them that the union should not submit their charter of demands on 1-5-2003 and one year's extension may be approved in the existing settlement and that there should be extension of one month in en bloc holidays from 18-4- 2003 to 25-5-2003 which may be extended upto 26-6-2003 and that retainee workers may be allowed to be converted into seasonal workers on which the union show no objection. The petitioners have stated that they did not concede to these demands of the respondents and said that they will submit their charter of demands on due date and it will be decided through bilateral negotiations. The petitioners have alleged that all of sudden on 18-4-2003 they found a notice published in daily newspaper "IBRAT" that services of 426 workers have been terminated which is more than 50% of total strength and as such it is in violation of S.O.11-A of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and is unfair labour practice on the part of respondents. They have further alleged that on 16-4-2003 the respondents had filed petition before Labour Court No,6, Hyderabad under section 11-A of Standing Orders Ordinance where it is still pending and only notice has been issued to the union whereas no permission to terminate the services of employees or for closure of the establishment has yet been granted by the Labour Court. The petitioners have alleged that against the termination of 426 workers they made complaint to the higher authorities including Chief Minister of Sindh, Labour Department and other high authorities that the respondents have illegally terminated the services of 426 workers and on their application the Labour Director called the meeting of the management and the union but the respondents refused to abide by the decision of Director Labour. The petitioner have alleged that the respondents have employed armed people in their factory premises who are harassing and victimizing the employees and are also giving them temptations to resign from their posts. The petitioners have finally alleged that the reasons for termination given by the respondents are false, fictitious and fabricated as the respondents have earned huge profits in this season as in this season they have purchased the sugarcane at the Rs,43 per maund whereas in the previous season it was purchased by the respondents at from Rs,50 to Rs,80 hence they purchased the sugarcane at the cheaper rate and crushed more sugarcane and they produced more sugar and gained heavy profits. The petitioners have prayed that action of the respondents in terminating more than 50% employees without permission of Labour Court are the acts of unfair labour practice and that the whole process taken by the respondents may be declared as act of unfair labour practice and that the terminated employees may be restored to their original position.
3. The respondents have filed written comments in which they have denied the various allegations of the petitioners. They have denied that they are against the trade union or that they are against the trade union activities of the petitioner union. They have stated that union exists in their establishment since many years and that they have been continuing their trade union activities in incessantly. They have denied that they had ever victimized or harassed the petitioners union or their office-bearers or their members. They have however clarified that the company was suffering huge losses and that during the year 2001-2002 they had suffered losses to the tune of Rs,12 crores which was brought forward to the present season and in this season too they have suffered huge losses. They have given the reason for such huge losses in p.Ara 2 of their written comments. There are number of factors which according to the respondents led to the suffering of huge losses to them. At least 13 reasons have been given which have caused serious loss to them, important of them is that Govt. Had imported 6 lacs metric tons sugar from India and as such there was heavy accumulation of sugar due to which the prices came down and stores already produced by the respondents as well as other Sugar Mills became surplus with them. The respondents have stated that average ex-factory sale of the sugar including of sales tax was about Rs,17.74 paisas whereas the respondents' cost was about Rs,22.46 per kg as such the respondents were suffering huge losses on the said prices. The respondents referred to the Business Recorder Market Bulletin dated 8-2-2003, 19-2-2003, 4-3-2003 and 22-3-2003 which carry articles that sugar Industries have suffered heavy losses. They have also stated that due to short supply of water there was decline in the production or raw sugarcane which also led to the losses of Sugar Industries. In these circumstances according to the respondents there was no other way for the respondents than to terminate the services of employees to over come the losses being suffered by the respondents.
They have stated that for that purpose they have terminated the service of 426 employees because they cannot afford to suffer more losses by keeping those employees in service. They have stated that they have applied right course by terminating the services of employees and simultaneously filed application for permission to terminate the services of said employees. They have stated that law is that termination is the first step and not the last step as such' the termination of 426 employees is not an act of unfair labour practice whereas it is the legal act as enshrined in section 11-A of the Standing Orders Ordinance, 1968.
4. The respondents have also raised various legal pleas, some of them conspicuously are that the petitioner-Union has no right to espouse the causes of general workers, that the petition has been filed after about two months of termination of the employees who cannot be reinstated, as unfair labour practice, if any has already been committed and completed, hence this Court has no jurisdiction to entertain this petition. It was further pleaded that there was no industrial dispute pending, hence no stay order can be granted to the petitioners.
5. At the time of admission, the operation of Notice published in daily newspaper dated 18-4-2003 by which the services of 426 employees were terminated, was suspended but the respondents filed writ petition before the Hon'ble High Court where jurisdiction of this Court was challenged to pass such orders and the Hon'ble High Court by consent of the parties remanded the case to this Court and suspended the stay order of this Court and gave direction to decide the case within 15 days.
After remand of the case Mr. Faisal Ghani, the learned advocate for the respondents frankly conceded that legal objections raised by him were mixed questions of facts and law as such he offered that he will not raise preliminary legal objections at this stage but would like to press them after recording of evidence of both the parties. Accordingly both the parties were allowed to lead their evidence.
6. The petitioners in support of their case filed affidavits-inevidence of Abdul Karim Mangwano, Abdul Latif, Qadir Bux, Fateh Muhammad and Hussain Ali. All the witnesses were cross-examined by Mr. Faisal Mahmood Ghani, learned advocate for the respondents. The respondents in support of their case examined Muhammad Haroon, General Manager Administration on general points and Abdul Razzak, Manager Finance on the financial matters. Both these witnesses were cross- examined by Mr. Azmati, the learned advocate for the petitioners.
7. From the pleadings of the parties and from the evidence adduced by the parties, the points which require consideration of this Court are as under:--
(i) Whether the petition of the petitioner is maintainable.
(ii) Whether this Court has no jurisdiction to entertain this petition'.
(iii) Whether by terminating 50% of employees, the respondents have committed acts of unfair labour practice.
(iv) Whether the terminated employees can be reinstated by this Commission in exercise of its powers under S.49(4)(e) of I.R.O., 2002.
(v) Whether some of the employees have taken their dues in full and final settlement, whether some of the employees have served grievance notices on the respondents with intention to approach labour Court and whether the union cannot file the case on behalf of remaining employees.
8. I have heard the learned advocate for the petitioners and the learned advocate for the respondents. I have gone through the pleadings of the parties and evidence adduced by the parties.
9. My findings on the above points are as under:
10. Points Nos.I & II:--On these points the learned advocate for the respondents argued that the jurisdiction of this Court is limited to the cases of prevention of occurrence of unfair labour practice but where the unfair labour practice has already been committed then this Court has no jurisdiction. He argued that the jurisdiction of this Court is attracted where there are specific and concrete allegations of unfair labour practice otherwise this Court will lack the jurisdiction in such matters. In this connection he placed his reliance on PLD 1988 SC 53 in which it was held that:. "It is therefore not right to construe the clause in question as conferring a general jurisdiction upon the benches to entertain all kinds of grievance petitions even though they may not be relatable to unfair labour practice." On the principle of this authority he argued that the petitioners have failed to spell out any specific act of unfair labour practice on the part of respondents, hence the petition of the petitioners is devoid of instances of unfair labour practice and as such this Court has no jurisdiction to entertain this petition.
11. On the other hand Mr. M.A.K. Azmati, the learned advocate for the petitioners argued that the petitioners have made out a very good case of unfair labour practice on the part of respondents and the instances of unfair labour practice have been spelled out in the petition therefore this Court has jurisdiction to entertain this petition and to declare the acts of the respondents as acts of unfair labour practice. In particular he laid his emphasis on a plea that more than 50% of employees were terminated in violation of S.11-A as such it is an act of unfair labour practice.
12. I have gone through the petition very minutely. There are general type of vague allegations contained in the petition which are to the effect that the union was not liked by the respondents, that the union activities of the members and officers of the union were not usually liked by the respondents, that the respondents were harassing and victimizing the office-bearers of the union to resign from their posts, that the respondents were compelling the office-bearers and the members of the petitioners union to give up their demands and finally that the respondents were pressurizing the petitioners to go on en bloc holidays of extended period.
' All these allegations are past transaction. Whatever had happened in the past was condoned or waived by both the parties, because subsequently to these disputes the settlement was arrived at between the parties as such all the allegations of the petitioners stood validate and settled. These past transactions and past allegations, which have been amicably settled by both the parties, cannot be made basis for ground or instance of unfair labour practice in this petition. Even perusal of the petition would reveal that the petitioner had realized the difficulties of the respondents in sustaining the losses and thereby they had forgone their vested rights of bonus, annual increments and payment of electricity bills. However all these acts which were agitated previously A to be wrong doings on the part of respondents have now no nexus with the present petition. This Court will be concerned with the acts of unfair labour practice which have happened after those settlements. I will however deal with the fact whether the termination of 50% employees was an act of unfair labour practice or not while discussing the remaining other points. At this stage it is clear that the petition is devoid of material grounds and instance of unfair labour practice. These points are therefore answered accordingly.
13. Point No,III: This is most important and crucial point for decision of this case. In this regard the contention of learned Advocate for the petitioners is that the respondents terminated the services of more than 50% employees in violation of S.O.11-A of Standing Orders Ordinance, as such it is an act of unfair labour practice as defined in S.63(1)(I) of the I.R.O., 2002. In order to understand the import and application of both the sections it is necessary to reproduce both these sections which are as under:- 11-A. Closure of establishment--Notwithstanding anything contained in Standing Order 11, no employer shall terminate the employment of more than fifty per cent of the workmen or close down the whole of the establishment without prior permission of the Labour Court in this behalf, except in the event of fire, catastrophe, stoppage of power supply, epidemics or civil commotion."
"S.63(1)(I). Close down the whole of an establishment in contravention of Standing Order 11-A of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (West Pakistan Ordinance No,VI of 1968)."
14. The learned Advocate for the respondents in order to meet with this situation argued that S.63(1)
(I) postulates that if whole establishment is closed down without permission of Labour Court then it is unfair labour practice but where more than 50% of the employees are terminated without permission of the Labour Court it is not an act of unfair labour practice.
15. I have considered the arguments of learned Advocate for the parties in juxta-position with the above referred sections.
16. Mr. M.A.K. Azmati, learned Advocate for the petitioners in support of his contention that termination of more than 50% of employees is an act of unfair labour practice has placed his reliance upon 1983 PLC 74, 1991 PLC 305, NLR 1981 T.D. 245 and 1998 PLC 490 and page 495. I have gone through these authorities. In these authorities it has been held that termination of more than 50% of the employees without permission of the Labour Court is an illegal act but in none of these authorities it has been held that such act is act of unfair labour practice. Incidentally the first three authorities are by the Labour Appellate Tribunals which Tribunals do not deal with the cases of unfair labour practice. These appeals had arisen out of the orders of the Labour Courts which admittedly were not dealing with the cases of unfair labour practice. The act of terminating more than 50% of employees might be an illegal act which may be cognizable by the Labour Court and appeal may be heard by Tribunal but these authorities have never stipulated that such act would amount to act of unfair labour practice. In the last authority 1998 PLC at page 490 the Hon'ble High Court remanded the case to the Labour Court for giving fresh decision for permission to close down the establishment as certain material aspects were not considered by the Labour Court. The other authority reported at page 495 is on some other point and not on S.O. 11A. This authority is therefore not applicable being not relevant. Other authority which was relied upon by the learned Advocate for the petitioners on S. 11-A was of Full Bench of N.I.R.C. Reported NLR 1997 T.D. 507 but this authority is also not of help and assistance to the learned Advocate for the petitioners as in the reported case the whole establishment was wound up by the management and such acts of respondents were held the acts of unfair labour practice. In this case only 50% of the employees have been terminated while the establishment has not been closed, nor there is any application before the Labour Court for permission to close down the establishment but the application before the Labour Court is for permission to terminate the services of 50% of employees. Accordingly this authority is neither applicable to the facts and circumstances nor is of any help and assistance to the learned Advocate for the petitioners. Even otherwise the perusal of S.0. 11A would reveal that it deals with two situations, one is that employer cannot terminate the services of more than 50% of employees while in another part it is stipulated that the employer cannot close down the whole of establishment. Both these situations are subject to the permission of concerned Labour Court.
Second part of S.11A has been made unfair labour practice as defined in S.63(1)(I) which has been reproduced above. It means that if whole establishment is closed without permission of the Labour Court, it will be an act of unfair labour practice but if more than 50% of the employees are terminated it has not been made act of unfair labour practice under S.63. The Bench of this Commission in case No,4A(281)/2000-K, decided on 16-1-2001 in relation to S.11A has made the following observations which are pertinent and applicable to the facts and circumstances of this case. For ready reference they are reproduced as under:-- "From the above provisions it shall appear that there is bar on the employer to terminate the employment of more than fifty per cent of the workmen or close down the whole of the establishment without prior permission of the Labour Court in this behalf except in the event of fire, catastrophe, stoppage of power supply, epidemics or civil commotion. However in case the employer terminates the employment of more than fifty per cent of the workmen, it may be termed as contravention of S.O. 11A of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, but is not an act of unfair labour practice, as it does not fall within any clause of section 15 of the I.R.O.1969, but in case the employer closes down the whole of the establishment in contravention of S.O. 11A that will amount to unfair labour practice on the part of employer as contemplated under section 15(1)(I) of the I.R.O.
1969. Whatever the material has been placed on record it does not show that the respondents have taken any steps to close down the whole of the establishment and since no such act has been committed by the respondents so far as such whatever allegation contained in the main application will not make out a prima facie case of unfair labour practice on the part of respondents at least at this stage."
' I am in respectful agreement with the observations mentioned above and it has correctly interpreted S.O. 11A and S.15 (new S.63 of I.R.O. 2002). It is therefore now clear position of law that termination of more than 50% of the employees without permission of the Labour Court might be an illegal act but it cannot be construed to be an act of unfair labour practice. Accordingly I hold that termination of more than 50% of employees is not an act of unfair labour practice. This point is therefore answered accordingly.
17. Point No,IV. This is very cruCial and important point touching the very root of the case. Learned advocate for the respondents argued that Benches of the Commission have jurisdiction to prevent the occurrence of acts of unfair labour practice but where the acts of unfair labour practice have already been committed, the Bench ceases to have jurisdiction. In this connection he referred to Regulation 32 of N.I.R.C. (P&F) Regulations, 1973. It will be advantageous to reproduce Regulation 32 which reads as under:- "32. Manner of dealing with unfair labour practices.-(1) Where an unfair labour practice has been committed, and the case falls under section 25A, section 34 or section 53, as the case may be, the Commission may deal with the case under that section: ' Provided that the Commission while awarding punishment under section 53, may also direct the reinstatement of a worker and allow consequential benefits to him.
(2) Where as case of unfair labour practice is likely to occur, the Commission may take the following measures, namely:--
(a) it may summon all or any of the persons connected with the case which is likely to occur, hereafter in this chapter referred to as the connected persons, hear them and hold such inquiry as it deems fit;
(b) ascertain the factors which are likely to give rise to unfair labour practice;
(c) advise, direct or prohibit all or any of the connected persons to do or refrain from doing any act or to conduct themselves or their affairs in a manner calculated to avoid occurrence of unfair labour practice;
(d) reprimand or warn all or any of the connected persons that if they conduct themselves in improper way it would be deemed to be in furtherance of the commission of an offence punishable under section 53; and
(e) initiate security proceedings in order to prevent the occurrence of an unfair labour practice.
(3) Where a person whom the Commission has reprimanded or warned under sub-regulation commits an unfair labour practice, the Commission may consider, for the purpose of awarding punishment under section 53; the reprimand or warning as a circumstance aggravating the offence."
' From the above quoted Regulation he argued that first part relates to the acts of unfair labour practice which have already been committed and for that employees may be reinstated in service upon finding the employer guilty of acts of unfair labour practice and not otherwise while the second part relates to the commission of acts of apprehended unfair labour practice. To highlight his arguments the learned advocate for the respondents argued that services of employees were terminated by order dated 16-4-2003 and such notice was also published in daily newspaper "IBRAT" dated 18-4-2003 and that letters were sent to the concerned employees individually through post and through courier service. He argued that this petition was filed on 9-6-2003 i,e, after a period of one month and three weeks as such according to him the unfair labour practice if any was already committed and completed, hence this Court cannot entertain this petition much less grant any relief.
18. As against this Mr. M.A.K. Azmati, the learned Advocate for the petitioners could not cite a single authority that terminated employee can be reinstated by N.I.R.C. In exercise of its powers under S.49(4)(e) of I.R.O., 2002. On the other hand the learned advocate for the respondents placed his reliance on many authorities to support his view point that terminated employee cannot be reinstated in service except upon filing complaint and upon finding the employer guilty of unfair labour practice. In this connection he referred to the following authorities.
(1) PLD 1976 Lah.
611.
(2) 1984 PLC 1342.
(3) 1984 PLC 1480.
(4) 1990 PLC 599.
(5) 1994 PLC 476.
(6) Judgment of Hon'ble High Court of Sindh in C.P. No,D-1197/ 97 decided on 19-9-1997.
(7) C.P. No,D-1348/80 decided on 1-10-1980 and
(8) C.P. NO.D-1567/97 decided on 3-12-1997.
' I have gone through these authorities very minutely. In all these authorities it has consistently been held that where the terminated employee approaches the N.I.R.C. It has no jurisdiction to entertain such type of petition whereas such petition be filed before the Labour Court for his reinstatement or before the FST if the Department is controlled or has controlling shares of the Government The principle was laid down in PLD 1976 L 641 which was then followed without reservations. It will be advantageous to quote some observations of our own Hon'ble High Court reported 1984 PLC 1342 which are reproduced as under:-- ' National Industrial Relations Commission, held, was empowered under Regulation 32, clause (2) to prevent doing of act/occurrence which constitutes act of unfair labour practice. Commission is not vested with such powers in respect of unfair labour practice covering of Regulation 32(1)."
19. Admittedly the services of employees were terminated on 16-4-2003 and such letters were admittedly sent to all the employees by post and through courier service and admittedly some of the employees received such termination letters. Admittedly the petition was filed before this Court on 9-6-2003. It means that by the time of filing of petition, the unfair labour practice if any had already been committed and completed, hence this Court has no jurisdiction on the principle laid down in above quoted authorities and cannot grant relief to such employee. Now the relief may be granted to them by the Labour Court and some of the employees, to be specific 87 employees have served grievance notices on the respondents which means that these 87 intend to approach the Labour Court. The right and correct remedy for these terminated employees is to approach the Labour Court and this Court has no jurisdiction to entertain the petition of terminated employees.
' However this Court would have entertained their criminal complaint under S.65 of the I.R.O., 2002 and upon conviction of employer holding acts as acts of unfair labour practice could have reinstated those employees but admittedly no complaint as mentioned above has been filed, hence the said employees cannot be reinstated in service by this Court in exercise of its civil powers under S.49(4)(e). I therefore hold that this Commission has no jurisdiction to reinstate terminated employees. This point is answered accordingly.
20. Point No,V. On this point the learned advocate for the respondents argued that some of the employees have taken their dues in full and final settlement and then resigned from the post. He gave such number as about 220 workers. He argued that about 87 employees have served grievance notices upon the respondents to show their intention to file grievance petitions before the Labour Court. In such circumstances he argued that individuals had no intention to file the petition before this Court and seek relief from this Court whereas they intend to approach the Labour Court but it is only the union who have filed this petition on behalf of workmen. He argued that CBA Union has no right to espouse the causes of workers whereas it could file a petition for the rights guaranteed and secured to it by or under any law, settlement or Award. He argued that since individual workers have not filed this petition, hence the petition filed by the CBA is not maintainable and it has no right to file the petition on behalf of workers. In this connection he placed his reliance upon 1986 PLC 751, 1984 PLC 1359, PLD 1979 Karachi 473 and 1992 SCMR 36.
21. On the other hand the learned advocate for the petitioners argued that it is the vested right of the CBA to canvass the general grievarnces of its workers and consequently it has a vested right to espouse the causes of workers. In this connection he placed his reliance upon following authorities:--
(1) 1995 PLC 414.
(2) 1981 PLC 805.
(3) 2001 PLC 543.
(4) 1991 PLC 44.
22. I have considered the arguments of learned advocates for the parties in juxtaposition with the above-mentioned authorities. The authorities quoted by the learned advocate for the petitioners are not applicable to the facts and circumstances of this case because in none of these authorities it has been clearly and explicitly provided that union can espouse the causes of workers. The first authority quoted above by Mr. Azmati is the authority of Single Member of this bench but it has not been couched in such a way as to hold that the union can espouse the causes of the workers. The authority of Single Member even otherwise is not binding upon this Court. Even otherwise the learned Single Member held that "The case of the petitioner rests not only upon the provisions of the Wage Commission Award but also upon the various settlements reached upon by the parties on various occasions and therefore, such right is not only vested in each and every worker but also in the petitioner as their representative and the intervenor as CBA." These are perfunctory remarks and observations. In this authority the learned Member has held that individual as well as CBA can file the petition. This opinion does not appear to be correct.
23. In second authority which is a judgment by Sindh Labour Appellate Tribunal, it was observed that "They accordingly repelled the contentions that the said subsection was a bar to the raising of an industrial dispute relating to the establishment of the Workers participation fund under Act XIII of 1968 or that the Worker's Union was not entitled to seek its remedy either by way of adjudication and/or endorsement by the Labour Court."
' This authority also does not clearly stipulate that a union has right to espouse the causes of workers whereas it was held that the union can approach for adjudication of their rights and demands. That is not the case in this case. Much emphasis was led by Mr. Azmati on third authority reported 2001 PLC 503 but the perusal of this authority reveals that this authority is not applicable to the facts and circumstances of this case for the reason firstly that in the reported case individual workers had filed the case while it was not the case filed by CBA Union. Secondly company in that case had applied for closure of its establishment after terminating the services of more than 50% of workers. But in this case such is not the case. In this case the company has not applied for closure of its establishment. Thirdly after termination the workers were called and they were given their duties which implied that termination was withdrawn. That authority is not applicable to this case. The criteria led in that authority was different from the facts and circumstances of this case.
24. On the other hand, the authorities quoted and relied upon by learned advocate for the respondents Mr. Faisal Mahmood Ghani, have clearly stated that the union cannot espouse the causes of workers whereas it can approach the Court for enforcement of its own right guaranteed or secured to it by or under any law, settlement or award. Prior to promulgation of I.R.O., 2002 there was S.34 in I.R.O., 1969 which is equivalent to S.33 of the Ordinance, 2002. In PLD 1979 Karachi 473 the Karachi Bench held that "Interpretation that right secured to workers can also be enforced by taking recourse to S.34-Held, not permissible as it would result in rendering subsections (2),(3)&(4) of S.25-A nugatory and allow workers to bypass procedure and period of limitation laid down therein-Remedies provided under sections 34 and 25-A independently ensure respectively to benefit of Unions and workers for enforcement of their personal rights." In this authority the rights enforceable by CBA under S.34 are clearly mentioned which are: "The rights enforceable 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."
25. The Full Bench of Karachi High Court in 1984 PLC 1359 while interpreting S.34 made observations that "Such provisions could not be resorted to enforce any right secured or guaranteed to a worker by or under any law or any award or settlement for that will not be execution proceedings." In the same authority it was further observed as under:--
(i) "Section 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."
(ii) 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."
' The above observations of the Full Bench of Hon'ble High Court have made it clear without any doubt that the union cannot espouse the causes of workers. Even the Hon'ble Supreme Court has also held that the union cannot espouse the causes of workers. In this connection the reliance was placed on 1992 SCMR 36. More clear judgment in which the rights of CBA were stated is reported in 1986 PLC 751 in which the Division Bench of Hon'ble High Court while dealing with the implications of S.34 gave various stages where the CBA can represent the workers and where it cannot. Such observations 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 a 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 workmen 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."
' From the above authority it is clear that CBA can do above-mentioned three acts but cannot do fourth act i,e, enforcement of rights guaranteed to workers.
26. The perusal of the above authorities have abundantly made it clear that CBA cannot approach the Court for the redressals of the individual grievances of the workers. In this case it is also doubtful if the workers have authorized the union to file the case on their behalf. No resolution of general body of the union has been produced, no affidavit of the workers for whom the case has been filed has been produced and that there is no authority from the workmen to CBA to file the case on their behalf. On the contrary many of the employees have already served their grievance notices on the respondents for the enforcement of their own rights. In such circumstances it appears that only the CBA has got its own interest whereas it is not clear if the workers are actually interested in their reinstatement or not. In such circumstances the union is debarred from filing such type of petitions.
' In view of above stated facts, circumstances and legal position I have come to a conclusion that the CBA has no right to espouse the causes of the workers and therefore this petition is not maintainable.
27. Learned advocate for the petitioners had argued that the respondents have given false reasons while terminating the services of petitioners workers or that the respondents have suffered huge losses. He argued that on the contrary the respondents had achieved huge benefits and profits and therefore the termination orders were not justified.
28. On the other hand the learned advocate for the respondents argued that the respondent establishment had suffered heavy losses due to adverse market conditions, due to non supply of raw sugarcane, due to accumulation of stock of sugar, due to import of huge quantity of sugar by the Government and due to decline in the prices of sugar. He argued that these factors compelled to take step of terminating the services of 426 employees.
' I will not go into merits and demerits of these as it might prejudice the case of either party before the Labour Court where the application under S.11-A is pending and where the parties might approach for redressal of their grievance. It will be for the Labour Court to consider this aspect of the case while deciding application under S. 11A and while deciding the grievance petitions of the employees. Since I have held in precedent paras that the petition is not maintainable, it is not necessary to dilate upon this aspect, hence this aspect of the case is left to be dccided by the Labour Court.
29. Lastly and finally Mr. Azmati, the learned advocate for the petitioners argued that there was a settlement between the CBA Union and the management on 15-4-2003 by which it was decided that the workers would be sent on en bloc holidays at the conclusion of crushing season. He argued that on the next day of this settlement the management terminated services of 426 workers which is an illegal act and mala fide act on the part of respondents. He argued that when there was nothing in the mind of the respondents to terminate the services upto 15-4-2003 then what transpired overnight that the respondents terminated the services of 426 employees. He therefore argued that this act of the respondents may be termed as act of unfair labour practice. I am sorry to say that S.63 of the I.R.O., 2002 does not include this type of allegation as act of unfair labour practice. This Court cannot go beyond the Statutes and laws. If the law does not provide any such act to be unfair labour practice then this Court cannot introduce foreign element to be an act of unfair labour practice. This act on the part of respondents might be an illegal, mala fide or unwanted and unwarranted act but that does not fall within the purview of unfair labour practice, hence it will be different and another forum who will deal with this aspect of the case. Accordingly I hold that this act does not constitute any act of unfair labour practice, hence if cannot be termed as act of unfair labour practice and therefore the petitioners will be at liberty to agitate this act before some other forum where they will file grievance petition.
' Mr. M.A.K. Azmati, learned advocate for the petitioners placed his reliance on many authorities but they are not relatable for the purpose of this case, hence they are not discussed.
' In view of what has been discussed above I am of the opinion that the petition of the petitioners is not maintainable, that this Court has no jurisdiction and therefore the petition is dismissed along with stay application.