SYED PIR ALI SHAH, J. - Briefly stated the facts of the above cases are that the applicants were working as permanent workers since 1997. It is stated that services of the applicants were terminated by the respondent through a letter dated 18th November, 2002. Which was received to the applicants on 26th November, 2002. Grievance notice under section 46 of Industrial Relations Ordinance, 2002, sent on 24.12.2002 was not replied by the respondent. That the applicants were permanent employees of the respondent company. That the job on which applicant was working was permanent in nature and the applicants working with entire satisfaction of the company and have unblemished record of service as they have always worked diligently and in the entire interest of the factory. It is further stated that the applicants were an ardent Trade Union Worker and have been capable to untie the workers of the factory and being awareness amongst their co-workmen and this activity of the applicants were abhorred by the management and had many a times asked the applicants to give up his Trade Union activities. That the applicant received constant threats of his employment through Mr. Zaheer Alam, which he issued on behalf of and at the behest of the Director of the Industrial Chemical Workers Union and. Thereafter they joined newly formed Trade Union in the name and style Industrial Chemical Azad Mazdoor Union, applicants along with more than 50 other members who were the workers of the above- said company have joined hands each other when they all received threats of their employment for their involvement in legal trade union activities and also deserted their membership from Industrial Chemical Workers Union CBA when the CBA union has entered into an agreement which agreement was quite adverse to the interest of the workmen and also very detrimental. It is stated that though it was made voluntary to the workers to opt for employment severance scheme with very meager incentive to the workers but still the management used to such scheme as a weapon to threat the workers to necessary opt for such scheme or otherwise will be dealt severally and harshly. The management has been making a false, plea of the reorganization allegedly necessitated due to heavy accumulation of finished product, acute adverse market condition and other factors beyond their control so that made t enviable to continue with production of sodium bichromate, t is further sated that the plea of .He management as mentioned in the termination order and referred in the above preceding para is totally incorrect, false and fabricated laving far from truth, being misconceived, malicious and mala i.e, based On ulterior motives as the ground for such olea is a flimsy and against the market trend and economic situation of identical trade activities. In fact the management deliberately making such things in order to achieve' their nefarious designs of sacking- the employees of the factory who were permanently working and also to i.e them illegally and unlawfully on the false pretext of reasons as mentioned in the termination order. It has further been stated that the applicants saw on reason whatsoever for the reasons which were mentioned in the termination order as being a knowledgeable worker of their job and being technical workers have strong belief that there is none in the market as adverse. Further, it is also refuted vehemently that the applicant was junior most in the category. It is further stated that the mentioning of earlier letter dated 29th October, 2002 whereby allegedly grant of leave without pay up to 31st December, 2002 is also refuted. That in fact when the applicant filed a case before the Hon'ble National Industrial Relations Commission for the acts of unfair labour practice on the part of management and the learned Commission initially granted prohibitory orders and such orders wee holding the fields and subsisting till 21.11.2002 it is further stated that since the prohibition order was .In the field and workers, were on duty till this termination order which was received to the applicant on 26th November, 2002 and since workers never accepted any illegal order of forcing the applicant not to attend his duty as such, mentioning of said letter is of no legal consequence. As such , repudiated by the applicant as the statement and action of the management being illegal and unlawful.
Applicants have therefore, prayed that they may be reinstated in service with full back benefits.
2. In rebuttal, Respondents have filed preliminary legal objection and para wise comments on behalf of the respondents. It is stated that the present applicant under section 46 of the I.R.O., 2002 as framed and filed by the applicant is legally not maintainable and is otherwise frivolous and vexatious. That the provisions of section 25-A of I.R.O.. 1969 Were made part of sub-section (3) of Section 12 of the West Pakistan Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968 and since the Industrial Relations Ordinance, 1969 stood repealed and new I.R.O..
2002 has been promulgated and the provisions of Section 46 being not a corresponding provision of the repealed I.R.O., 1969 and have not been imported in the Standing Order Ordinance, 1968, therefore, the enforcement of Standing Order 12(3) of the Standing Orders Ordinance, 1968 under Section 46 of I.R.O., 2002 is unenforceable and inconsequential. As such, the main Grievance Petition is untenable and is liable to be dismissed on this score alone. It is further stated that any right guaranteed or secured under any law, award or Settlement having accrued to the applicant, the present application filed by him is incompetent, invalid and liable to be rejected out rightly. It is stated that services of the applicants having been dispensed with on explicit and bona i.e reasons, as such the' action of the respondent is proper valid and unassailable. It is further stated that the present application, is not in consonance with the provisions of law and is liable to be dismissed out rightly.
It is further stated that the contents of paras 1, 2 and 3 and the allegations made therein are emphatically denied as false, baseless and unfounded except employment of the applicants with the respondent It has further been stated that paras 4 5.-6; 7 and 8 allegations made thereon are vehemently, denied as false baseless and mischievous except execution of agreement between CBA union and the respondent, manifest (Annexure 'C" to the main application. It is submitted that the owing to an enormous decrease of import duty on .The finished goods, high cost of production and other factors beyond the control of the respondent management it was decided by the respondent management to re-organize the business of manufacturing process at the factory/plant level and to stop manufacturing of sodium bicarbonate, the services of workers had become redundant and surplus to the requirement of the respondent management. Realizing the said fact the then C B A. Representing the workers arrived at a collective bargaining settlement/Agreement dated 25:1.0.1994 with a view to cope up with the . Adverse situation of the company. In consequence thereof some cash benefits/service scheme was introduced for the said period subject to the terms and conditions of the settlement dated 25.10.1994 wherein, inter alia, it was agreed that in the event of recommencements of manufacturing of sodium bicarbonates at the local level or otherwise any vacancy arose in future, the same would be filled in any those workers/employees, who were opting for cash benefits/service scheme on the same wages and other terms and conditions of employment as was applicable at the time of termination of employment. It was also agreed that in case of vacancy outside Karachi willing workers would also be offered for such jobs. At the time of reemployment each worker would be given priority according to the length of service in his category. That the respondent management fully adhered to the terms of the settlement executed between ' the then CBA. Union and the management and had never violated any clauses of the settlement in any manner whatsoever It is a matter of record that no complaint from any worker or CBA was ever preferred before any forum. It Is further mentioned that once again in the month of June/July 2002 due .To heavy accumulation of stock and finished products Basic chromium sulphate, market conditions and decrease of import duty on the finished goods, high cost of production and other reasons beyond the control of the.
Respondent establishment it was decided to reorganize the business of. Manufacturing process at the factory/plant level and. Therefore, the respondent management was 'pe: forced, to stop, for the time being, any further manufacturing of sodium bichromates and basic chromium sulphate at' present. Realizing the said facts, the CBA. Representing the worker arrived at a collective bargain settlement/agreement dated' 0. 1.07.2002 for settling the existing adverse situation of. The respondent company. It is further stated that the allegations made in the para 9 and grounds are vehemently denied as false, baseless and unfounded. It is stated that other workers including the applicants purposefully and deliberately concealed the facts more spherically the collective bargaining settlement dated 01.07.2002 and with mana i.e intention filed petition bearing No. 4A(194)/2002 and 24(195)/2004 under section 22-A (8)(g) of I.R.O., 1969. And under, regulation 32(2)(c), NIRC (P&F) Regulations, 1973 against the respondent management before the Hon'ble Commission and made false and fictitious allegations against the respondent management and on the basis thereof obtained ex parter prohibitory order dated 04.07.2002 from learned NIRC at Karachi. Upon receipt of notice the respondent management filed Preliminarily Legal objections, Counter Affidavit and another application for antedating the case. During the course of hearing the learned NIRC modified the order, whereby permitting the respondent to give effect to the terms of settlement dated 01.07.2002. Consequently, the effected workers including the applicants were sent on leave for three months with effect from 01.07.2002 vide letter dated July 17, 2002 and the leave period of the applicants was further extended which was duly communicated to the applicants through registered post on the last known address available on record. It is further stated that after hearing both the parties learned NIRC dismiss the case filed by the applicant and other workers vide order dated 12.11.2002. It was further stated that on 18.07.2002 at 8.00 a.m. M/Sr Aqeel Khan, Zareen Khan, Khasta Khan, and Iqbal Khan entered in the office of the Director Administration and resorted to threat, show of force, riotous and disorderly behaviour and also threatened that they will entered into the factory on 19.07.2002 at 7.00 a.m. If not allow, will resort to further physical violence and further threatened that they will not allowed the management to enter in the factory.
The respondent reported the incident to the S.R.O., S.I.T.E. Vide letter dated 18 07.2002. On 19.08 2002 the said workers and the persons connected with them as same were at the main gate of the factory and block of gate by parking their cycle in front of it. Raised slogans, used abusive language against the Directors and Managers of the respondent' factory. One outsider was also found in procession of pistol and was shouting that they will kill the management, if not allowed entry in side the factory premises and the said workers including the applicants created law and order situation. Thus, the applicant and others committed act of unfair labour practice stopped the management to exercise their managerial functions, therefore, the respondent management filed case bearing No. 4A(238)/2002/24(239)/2002 under Section 22-A(8)(g) of I RO., 1969 before N.I.R.C.
The Industrial Chemicals workers union and the other workers including the applicants were also party in those proceedings They filed para wise comments and after hearing both the parties, learned NIRC, Bench at Karachi confirmed the prohibitory order in favour of the respondent vide order dated 12.11.2002. The said proceedings are sub judice. It is further stated that as a result of .Reorganization and necessitated due to heavy accumulation ,of finished product, acute adverse market condition and other factors beyond control of the respondent, it had become unenviable for the management to continue with the production of sodium bichromate. Consequently, services of applicant having become redundant and surpluses to the requirement were terminated with immediate effect on payment of one month's wages in lieu of notice. The workers were also asked to settle their dues from the accounts department of the respondent vide termination letter dated 18.11.2002, which was duly served upon the applicant through registered post on the last given address of the applicants available on record. Respondent have therefore prayed for dismissal of the case filed by the applicant.
3. Now the points for determination will be as follows:- -
(1) Whether applicant's case filed under Section 46 of I.R.O.
(2) Whether applicant was illegally terminated form employment? '
(3) Whether applicant is entitled for the relief claimed?
4. In support of his case applicant has deposed by way of his affidavit-in-evidence and cross- examined by the learned counsel for the respondent. Mr. S.M; Alam, Director of the respondent filed his affidavit-in-evidence on behalf of the respondent company and duly cross-examined by the learned counsel for the applicant:
5. I have heard both the learned counsel of the parities and have carefully gone the case papers.
REASONS
6. POINTS NOS. 1 & 2: Both these points are inter-dependent and as such discussed together. The case of the applicant is that he was illegally terminated from service: In rebuttal, there is denial from the side of the respondent who took plea that due to curtailment of the. Relevant departments whose production had decreased much, the certain department were closed temporarily with effect from....... It has come in the evidence that earlier workers were also discarded from service and in lieu thereof workers were granted three months leave as there was no more relief and after some time the position was revived and workers were re-employed through CBA agreement executed with the management. In his cross-examination applicant has admitted that prior to filing of this case he had filed ^ase before N.I.R.C. Which was dismissed. He has denied the suggestion that before N.I.R.C. And in this Court his case was mainly on the ground that applicant's services were terminated due to union activities. He has also admitted that factory was closed in view of accorded settlement/ agreement executed between the management and union and thereafter workers left their services on their own. He has also admitted that he was remaining member of C. B.A. Since? Their appointment up to the last movement of their service-.....
According to him, he has not alleged losses of financial matter of the factory. It is denied by him that leave as well as termination of workers mere made due to agreement dated 01.07.2002 with the management. He has further admitted that cheque dated 29.11.2002 was received by him but subsequently he returned the same. He has admitted that he had received document R/1 to R/9 of the correspondence made with registered A/D by the respondent management to the workers individually. It is denied that their section stand closed with effect from 18.11.2002. Applicant has further denied that he was not terminated from service. On the other hand, respondent led evidence and deposed that twice respondent factory was reorganized, firstly, in the year 1994, secondly, in. The year 2001. In cross-examination respondent witnesses deposed that on 30.06.2002, their factory was again recognized as per agreement with the C.B.A. Union. It is stated that except Chowkidar, Sweeper and Security staff rest of the employees were discarded/discharged. It is stated that the workers were not employed through C.B.A. Union. In further cross-examination, he has deposed that the management has been paying all benefits and emoluments to the workers till 30.06.2002 including the bonus and also paid to% workers participation fund. It is deposed that no character of demand was furnished by the union at the time of settlement. It has come in the evidence that the respondent as a matter of fact stopped the business of manufacturing due to closure of the production of bichromate sodium and as such, through C B A. Settlement/agreement workers were given cash benefit/service scheme and that the action of management was bona i.e. It has also come in evidence that the company was not closed down as a whole of the establishment and that due to the reason beyond their control manufacturing process at the factory level and that particularly Sodium bichromate was stopped.
It has sufficiently come in the evidence that the applicants, were not discharged/discarded from service on account of the reason other than the closure of relevant department whose production was no more required. There appears no mala fides on the part of the respondent management who has amicably settled the dispute through the C.B.A. Union of the workers on the factory instead of issuance false and coercive measure of issuance show-cause notice and charge-sheet etc. Closing its department does not tantamount that any valuable rights whatsoever of the applicant was curtailed or infringed. There appears no mala fides on the part of the respondent management. Had, it been so than the management would have resorted to foul means and would never has indulged in negotiation or conciliation with the C B A. Union for chalking out a scheme of voluntarily retirement and sanding workers on leave and paying without all , monitory benefits for which they were entitled: Conclusively it is held that the case of applicant filed under Section 46 of I.R.O., 2002 is, therefore, not maintainable in law. Finding on the points Nos. 1 and 2 is accordingly.
7. POINT No. 3: In view of my findings on points Nos. 1 and 2 the applicant is not entitled for any relief as, applicant has failed to prove that he was illegally terminated from service. Consequently, his case filed under 46 of I.R.O., 2002 is dismissed being not maintainable as well.
Announced in open Court.
Given under my hand and the seal of the Court, this the 30th day of September, 2006.