' QAZI AHMED SAEED (MEMBER).---This order shall dispose of the application for grant of stay annexed with the main petition No,4A(8)/2003 filed under section 49(4)(e) of I.R.O., 2002 by Mazdoor Union Neelam Glass Industries Ltd. Hassan Abdal Attock through its General Secretary against M/s Neelam Glass Industries Ltd. Hassan Abdal through its Managing Director and two others with the prayer that a prohibitory order be issued to the respondents not to refuse to continue to employ the members and office-bearers inclusive of Muhammad Aslam President and Muhammad Anwar Propoganda Secretary of the petitioner-union on the basis of a restrictive condition illegally put under "Damand No,30" in the "Settlement' in respect of retirement of workers at the age of 55 years and also continuation of the duration of 3 years of the Settlement, be suspended pending decision of the main petition.
2. Case of the petitioner union as set-out in the petition is that the petitioner-union which is CBA (hereinafter called the union) has served a charter of demands (containing 30 demands) upon the respondents management on 3-9-2001 but no settlement could be arrived at during bilateral negotiation, the union has therefore served a notice of strike on 6-11-2001, which remained pending before the respondent No,3 (Conciliator of the Area) for more than a year. However later on the respondent No,3 in connivance with the other respondents has finalized a settlement for a period of three years, putting illegally a restrictive term regarding retirement of workers at the age of 55 years in the said settlement which was neither agreed by the union nor was contained in the Charter of Demands served by the petitioner nor any counter Charter of Demand containing such demand was ever served by the respondents. It is further alleged that neither any such demand can be made to reduce the legal rights of workers covered under the law nor a settlement imposing such condition can be executed. Agitating the aforesaid restrictive condition, it is alleged that as per Demand No,30, in the Charter of Demand, it was submitted by the union that two workers and one member of the staff be sent for performance of Haj, but in the settlement it was agreed that two employees one from the worker and one from the staff would be sent for performance of Haj through ballot and only those permanent employees would be included in the ballot who have continuous 10 years service in the respondent's Company. It is further alleged that the settlement was arrived only on this point, but the respondent No,3 illegally kept the "Memorandum of Settlement" with him and supplied copy of the same after three days to the petitioner union in which the aforesaid restrictive condition regarding retirement of workers at the age of 55 years was illegally inserted although the Charter of Demand served upon the respondent Company, did not contain this demand. Moreover this is a continuous practice that the workers are retired at the age of 60 years and thus the existing rights of the workers cannot be taken away.
Reference is also made by the petitioner to section 22 of the Employees Old Age Benefits Act, 1976 with the submissions that in terms of the said section, the age of retirement cannot be reduced to 55 years. It is further alleged that copy of the "Mamorandum of Settlement" was supplied to the petitioner union after three days and that the respondents Nos.1 and 2 are refusing to continue to employ the members and office-bearers of the union. It is further alleged that the respondents Nos.1 and 2 have refused to employ about 19 workers as mentioned in para. 8 of the petition. It is next alleged that the respondents are likely to refuse to employ the President and Propaganda Secretary of the union namely Muhammad Aslam and Muhammad Anwar as they have already been issued notices to this effect. It is further alleged that the respondents are bent upon finishing the membership of the petitioner union by refusing employment to their members and office- bearers, which constitute unfair labour practice as defined under section 63(1)(a)(b)&(c) of I.R.0, 2002. It is prayed that the respondents be directed not to refuse to continue to employ members and office-bearers of the petitioner union including Muhammad Aslam, President and Muhammad Anwar Propaganda Secretary on the basis of the restrictive condition regarding the retirement of workers at the age of 55 years inserted illegally in the Memorandum of Settlement with a view to victimise the office-bearers and members of the petitioner union. It is further prayed that the respondents be restrained from committing unfair labour practice and the insertion made under Demand No,30 of the said settlement in respect of retirement of workers at the age of 55 years be set aside. The condition of duration of settlement to be 3 years be also set aside.
3. This petition along with the stay application was placed before me on 15-3-2003, when after taking notice of the facts and the circumstances as mentioned in the petition and stay application and after hearing representative of the petitioner union, the following ad interim order was passed:-- "In the meanwhile the respondents are directed not to implement the condition of retirement at the age 55 years as mentioned in the settlement arrived on 11-1-2003 between the petitioner union and the respondents management and also maintain status quo in respect of employment of Muhammad Aslam and Muhammad Anwar, President and Propagands Secretary of the petitioner union till the date fixed."
4. The respondents Nos.1 and 2, while filing their written statement and reply to the stay application have resisted and opposed the petition by raising certain preliminary objections. On merits they have also controverted the allegations made by the petitioner union. The main contention of the respondents Nos.1 and 2 is as under:-- I. that the petitioner has no locus standi to file the instant petition before this commission as the petitioner union is excluded by law from espousing the cause of individual workers. It is the settled law as laid down by the Hon'ble Supreme Court of Pakistan that only a "Collective Bargaining Agent" can move an application under Section 33 of the I.R.O., 2002 for the enforcement of any right guaranteed or secured to it by or under any law or any award or settlement while an individual worker may make an application under section 46 of I.R.0, 2002.
II. that in terms of the "Memorandum of Settlement" executed between the Respondents Nos.1 & 2 and the petitioner union, the age of retirement has been mutually agreed to be fixed as 55 years.
The said Memorandum of settlement is duly signed and executed by the President and General Secretary on behalf of the petitioner union and Factory Manager and the Chief Executive on behalf of the respondents management, which was also witnessed by the District Labour Officer Attock in token of its authenticity. It is next contended that in furtherance of the aforesaid Settlement, 18 employees of the respondent establishment who had attained the age of 55 years were stand retired w,e,f, 18-2-2003. All of them have voluntarily received their terminal benefits including "Provident Fund" "Encashment of Leave" & "Notice pay" etc, and are no longer on the roll of the respondents establishment. Should they feel aggrieved, they may have recourse to the procedure prescribed under Section 46 of I.R.O., 2002 read with Standing Order 12(3) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. Similarly if the President and Propaganda Secretary of the petitioner union feel aggrieved, they can avail the remedy available to them under section 46 of I.R.O., 2002. It is next contended that the crux of the matter is that the petitioner union is not permitted by law to file the instant petition in respect of individual workers (1992 SCM R 36, 1984 PLC 1359 and 1982 PLC 1).
III that the instant petition also suffers from another fallacy is that status quo granted by this Bench on 15-3-2003 in respect of employment of the President and Propaganda Secretary of the petitioner union is violative of the Proviso to clause (e), subsection (1)of section 49 of the I.R.O., 2002.
Even otherwise the status quo order is no sustainable in law. Red this order not been passed, the aforesaid two workmen would have in the normal course, retired from service w,e,f, 18-2-2003 as one month's notice had been served on both of them.
5. On merits all the allegations have also been denied and it has been contended that the union namely Employees Trade Union, as mentioned in the petition was cancelled by the Labour Department and no such litigation is pending in any Court including the N.I.R.C. It is further contended that the petitioner union has submitted a Charter of Demands on 3-9-2001 which was followed by a Notice of Strike on 6-11-2001 and Conciliator of the area commenced conciliation proceedings. However, in the midst of these proceedings the petitioner ,union expressed the desire to settle the dispute amicably through bilateral negotiations with the respondents, which was conceded by the Conciliator. Accordingly a settlement was arrived between the petitioner union and respondents Nos..1 and 2 and it was mutually agreed between the parties to the settlement that the age of retirement of workers will be 55 years and that the settlement was concluded with a note of satisfaction expressed by the President and General Secretary of the petitioner union that they withdraw the order demands and also undertook not to raise any financial demand during currency of the settlement. It is further contended that 18 workers who retired on attaining the age of 55 years have already received their terminal benefits and applications of 12 of them for grant of pension have already been forwarded to the Director EOBI. It is next contended that Muhammad Aslam President and Muhammad Anwar Propaganda Secretary of the petitioner union, were served notices on 17-2-2003 that they would stand retired on 18-2-2003. However in view of the status quo order they have not been paid the terminal benefits. The retirement of the aforesaid two workers in furtherance of the "Memorandum of Settlement" executed between the petitioner union and the respondent Management does not constitute unfair labour practice.
6. The respondent No,3 (Conciliator of the area) has also filed his written statement and denied all the allegations made by the petitioner specifically the allegation that the disputed term was inserted in the settlement without knowledge of the petitioner union. He contended that the petitioner union served a strike notice on 15-11-2001 for settlement of the industrial dispute. In furtherance of the said strike notice conciliation proceedings were being held in his office. However the proceedings were postoponed on the request of both the parties i,e, the petitioner union and the respondent No,2. The petitioner union always submitted that they are trying to settle the dispute through bilateral negotiation in the factory. However t iee last conciliation meeting was held on 6-1-2003 in his office and the next date of the conciliation meeting was fixed for 21-1-2003 (Copy of the proceedings placed at page 17 of the file). It is contended that the actual story is that the petitioner union settled the industrial dispute with the respondents management on 11-1-2001 and rang him up that they have executed an agreement with the respondents management and requested him that he may come and sign the "Memorandum of Settlement". He further submitted that he along with Mr. Fazal Hussain Labour Officer went to the Factory of M/s Khawaja Glass Industries Hassanabdal on 11-1-2003 at 2.00 P.M. Haji Muhammad Rafique Personnel Manager, Khawaja Glass Industries and Malak Mohammad Ashraf Manager Neelam Glass Industries, Khan Afsar General Secretary and Muhammad Aslam President on behalf of the petitioner union were present. The President and General Secretary of the petitioner union stated that they have settled the industrial dispute and executed an agreement with the respondents management and thus the same may be signed by him. He further stated that though the date fixed for the conciliation meeting was 21-1-2003 but in view of the aforesaid situation he had no alternate except to agree with the parties and therefore he verified the agreement which was signed before him by the representative of the petitioner union and the respondent management, so question of any pressure upon the petition does not arise. Since on 11-1-2003, it was Saturday and office timing was over, he therefore informed the representative of the petitioner and the respondents management that on Monday the 13th July 2003, Certified copy of the "Memorandum of Settlement" to the petitioner as well as to the respondent, however, an additional copy of the 'Memorandum of Settlement' was provided to the petitioner as well as to the respondent on 11-1-2003 in the office of the personnal Manager at the spot.
7. I have heard argument of the representative of the petitioner union and learned counsel for the respondents on stay application. In his arguments the representative of the petitioner has reiterated the petitioner stand taken in the petition that the respondent No,3 in connivance with the respondents Nos.1 & 2 inserted a restrictive condition regarding retirement of workers at the age of 55 years under "Demand No,30" in the Settlement arrived between the petitioner union and the respondents management without knowledge of the petitioner union as the said item was neither part of the 'Charter of Demand' nor that there was a dispute on the said point as the age of retirement for the workers employed in the respondents factory was 60 years and there has been a continuous practice of retirement of workers at the age of 60 years, thus an existing right of workers cannot be taken away, which is also specified under section 22 of the Employees Old Age Benefits Act, 1976. He further contended that no such Settlement was arrived on the aforementioned point of 55 years of retirement age. He further contended that copy of the Memorandum of Settlement was kept by the respondent No,3 and supplied to the petitioner union after three days. He contended that in the fact and circumstances of the case, as submitted in the petition, the condition of retirement of workers at the age of 55 years under "Demand 30" of the Memorandum of Settlement being unfair labour practice and violative of the law is liable to be set aside.
8. In rebuttal to the assertion of the representative of the petitioner, learned counsel for the respondents Nos.1 and 2 has pointed out that in view of the proviso to clause (e) of subsection 4 of the section 49 of I.R.0, 2002, the Commission is barred from granting interim relief against any action mentioned in Section 63(d) of the said Ordinance except during pendency of an industrial dispute. He further contended that since no industrial dispute is pending, therefore no ad interim order or prohibitory order can be issued. He further contended that in terms of the "Memorandum of Settlement" executed between the respondents management and the petitioner union, the age of retirement of workers has been mutually agreed to be 55 years. He further submitted that the said settlement has been duly signed and executed by the President and General Secretary on behalf of the petitioner union and the Factory Manager and Chief Executive on behalf of the respondents management and witnessed by the District Labour Officer Attock in token of authenticity, thus the petitioner union is estopped to approbate and reprobate as the aforesaid settlement was executed with free will of the executants. He further contended that the operation period of the said settlement was mutually agreed and is in accordance with the provisions of section 60 of I.R.O., 2002. He further contended that 18 workers who stand retired on attaining the age of 55 years, have already received their terminal benefits and applications of 12 of them for grant of pension have already been forwarded to the Director EOBI and the EOBI agreed to pay full pension to the said workers in terms of the aforementioned Memorandum of Settlement. He further contended that the Commission is not empowered to rescind or modify the terms of the aforesaid settlement which has a binding effect in terms of section 59 of I.R.O., 2002.
9. I have given my anxious consideration to the submission made by the representative of the petitioner union and learned counsel for the respondents management. Law by now is fairly well settled that before granting interim relief, the Court must satisfy itself whether there exists any prima facie case in favour of the person seeking the interim relief and it must also examine the concept of convenience/inconvenience of the parties and irreparable loss likely to be suffered by the petitioner in case of refusal to grant the interim relief. In a case like the present one which is based on the allegations of unfair labour practice, it has to be seen whether the allegations made by the petitioners coupled with other material available on record, prima facie disclose the commission of any unfair labour practice on the part of employer because exercise of jurisdiction of the Commission depends on such findings.
10. On minute examination of the pleadings of the parties and their respective versions, I find that the case of the petitioner union rests on bald allegations of unfair labour practice. The impugned "Memorandum of Settlement" was executed and signed by the President and General Secretary of the petitioner union and the representative of the respondents management on 11-1-2003 with the free will of the executants but the petitioner union was remained silent till the date of filing of the instant petition i,e, 12-2-2003, while during this period about 19 workers as mentioned in para. 8 of the petition were stand retired on attaining the age of 55 years and they have received their terminal benefits. Similarly there is no mentioning that the petitioners union after receipt of copy of the "Memorandum of Settlement" on I 13-1-2003, has made any representation to any forum against the disputed item under "Demand No,30" of the said Settlement. The petitioner union has simply alleged that the respondent No,3 in connivance with the respondent Nos.1 and 2 imposed the aforementioned condition of retirement of workers at the age of 55 years and supplied copy of the Memorandum of Settlement after 3 days of its execution but there does not appear to be much substance in this allegation, thus it cannot be said on the present record and in the attending circumstances that the impugned condition of retirement of workers at the age of 55 years was motivated on account of trade union activities. The crux of the matter therefore demand that some pro and contra evidence is necessary to be brought on record for just and proper adjudication of the matter.
11. As observed above, there does not exist a prima facie case of unfair labour practice in favour of the petitioner union on the basis of the present record. Balance of inconvenience too does not seems to lie in their favour. The petitioner union should have placed on record some material in support of their contention which they have failed to do so. It also cannot be reasonably contended that the petitioner union will suffer any irreparable loss and injury if the interim relief sought by them is not granted because the impugned condition of retirement of workers at the age of 55 years has already been implemented and as a result thereof 19 workers have been stand retired. It may be observed that the objection contained in the preliminary objections, taken on behalf of the respondents in their written statement are connected with each other, which can be examined and determined only after recording evidence of the parties.
12. Upshot of the above discussion is that the petitioner union having failed to make out a prima facie case of unfair labour practice on the present record. Other necessary ingredients of balance of convenience/inconvenience and likelihood of irreparable loss also not being in favour of the petitioner union for grant of the interim relief, I therefore, find no merit in this application for grant of interim relief, which is hereby dismissed. The ad interim status quo order passed on 15-3-2003 is recalled. The main petition shall now come up on 14-6-2003 for filing affidavit in evidence on behalf of the petitioner union.