' SYED AKHTAR NAQI NAQVI (SENIOR MEMBER).--- We are purposely avoiding to dilate upon the merits of this case in view of the nature of order which is going to be passed. This appeal is directed against the order dated 14-12-2000 passed by Mr. Allah Rakhio Laghari learned Member NIRC Karachi Bench whereby he dismissed a Petition bearing No,4A(224)/2000-K while disposing of an application under Regulation 32(2)(c) of the NIRC (P&F) Regulations, 1973 and application under section 151, C.P.C. Filed therein. The grievance raised by the appellant is that being the Collective Bargaining Agent for the workers employed in Duty Free Shops Limited Pakistan (respondent) the appellant-Union served a notice under section 26(1) of the IRO, 1969 (since repealed) (henceforth to be mentioned as IRO) on the respondents for holding of bilateral negotiations but without any positive result. The appellant-Union then served a notice under section 26(3) of the IRO whereby the conciliator of the area initiated proceedings which were pending at the time of institution of this petition. However, as a result, the management of the respondent-Establishment started victimization of the workers/office-bearer of the appellant-Union. It was contended that on account of service of charter of demands and demanding for bilateral negotiations and amicable settlement thereon, the management pressurized the union and its office-bearers in one way or the other and also threatened the workers either to leave the CBA union or compel the union to withdraw the charter of demands otherwise their services would be terminated but this pressure was resisted and the appellant-Union protested against the commission of acts of unfair labour practice on the part of the respondents by addressing letters to the respondents one after the other but without any effect except that the respondent-Establishment issued show-cause notice to one of the office-bearer namely Mazhar Manzoor to pressurise and blackmail him for his lawful trade union activities. It was further contended that the respondent-Establishment continued those acts of intimidation and coercion for withdrawal of charter of demands and cessation of trade union activities inasmuch as three other office-bearers were compelled and coerced to submit their resignations which they did under pressure and the respondent-Establishment was bent upon committing further acts of unfair labour practice against them unless restrained hence this petition for restraining the respondents, its officers and agents from committing further acts of unfair labour practice. Along with this petition the appellant also filed an application under Regulation 32(2)(c) of the NIRC (P&F) Regulations, 1973 for a temporary relief of identical nature till the disposal of the main petition.
2. The respondent contested the grievance petition as well as stay application inter alia on the grounds that the petition was not maintainable and was otherwise false, frivolous and vexatious, that the appellant has no cause for filing the said petition and it was an unfettered right of the employer to proceed against its employees on a given charge. The allegation of unfair labour practice was denied as incorrect. The matter was still pending that the respondent terminated the services of 60 workers' vide order, dated 13-10-2000 hence an application under section 151, C.P.C.
Was filed for suspending the operation of the aforesaid order as the same was passed during the pendency of the status quo order. The learned Member Single Bench vide order, dated 14-12-2000 dismissed the said application as well as application under Regulation 32(2)(c) of the NIRC (P&F)
Regulations, 1973 along with the main petition without putting the parties to trial or enabling any of the party to prove their respective contentions by producing evidence hence the said order has been assailed by means of this appeal. We have heard arguments at length addressed by the learned counsel for the parties. We have also heard Mr. Faisal Mehmood Ghani and Mr. M.A.K.
Azmati, Advocate as amicus curiae with regard to the maintainability of the petition filed by a C.B.A.
Union espousing the cause of workers and we have gone through the record.
3. Mr. Faisal Mehmood Ghani learned amicus curiae supporting the contention raised by the respondents has referred to a few authorities < of law reported as 1986 PLC at page 751 and 1992 SCMR at page 36 whereas Mr. M.A.K. Azamti supported the contentions of the appellant that under the repeated IRO, in such circumstances the grievance of the workers could be agitated where a general concern was in issue as in this case, however, we would seek guidance from the authority of law reported as 1992 SCMR at page 36 wherein it was held that in the repealed IRO, 1969 a Collective Bargaining Agent had been authorized to move the Labour Court in case of individual grievance where workers had brought his grievance to the notice of his employer through the CBA.
We would refer to a few letters dated 10-7-2000, 13-7-2000 and 12-7-2000 whereby the respondents were informed by the appellant-Union that several members of the CBA Union and other workers of the Duty Free Shops Limited Pakistan had disclosed to the appellant-Union that the management of Duty Free Shops Limited Pakistan pressurized them to withdraw the membership from the appellant-Union and join another union to their choice. In the other letter they were informed through the CBA that the officers of the respondents were pressurized and harassm ent was created amongst the members of the appellant-Union to withdraw the strike notice. Same is the subject-matter of the letter dated 12-7-2000 written in urdu and addressed to the Managing Director of the respondent-Establishment. It was the duty of the respondent- Establishment to have replied within seven days of these notices and in view of these letters the appellant-Union was prima facie competent to take the grievance of workers to the NIRC but this kind of evidence did not attract the consideration of the learned Member Single Bench since he did not bother to record evidence of the parties so that the appellant-Union could prove its case on merits. The learned Member Single Bench was swayed by a general proposition that under the repealed law a CBA union was espousing the cause of individual workers which they cannot do legally. He has also referred to the same judgments of the Honourable Supreme Court of Pakistan which were referred to above but we are sorry that the learned Member Single Bench has picked and chosen from the headlines and has not perused the whole judgment in which at page 46 the aforesaid proposition has been laid down. However, to establish that such grievance was brought to the notice of the CBA by the workers and the CBA apprised the situation to the respondent, it was incumbent upon the learned Member Single Bench to have asked the appellant to prove this fact.
On the contrary the learned Member Single Bench has made frivolous observations that the appellant has not been able to make out a case of unfair labour practice and without any evidence he did not hesitate in holding that the termination of 60 workers including the office- bearers was a "termination simpliciter" and not an act of victimization and that it was a result of retrenchment. This was simply a contention of the respondent and no finding could have been given on the basis of this version unless it was proved through evidence.
4. For the aforesaid reasons, since the order of the learned Member Single Bench is based on presumptions and surmises and not based on any legal and judicial interpretation of law and facts of the case, we are, therefore, unable to sustain the order under appeal. The appeal is therefore accepted, the order under appeal is set aside and the case is remanded back to the learned Member Karachi Bench for deciding the main petition after providing opportunity to both the parties to prove their respective contentions. So far as the application under Regulation 32(2)(c) of the NIRC (P&F) Regulations, 1973 is concerned the respondents shall remain restrained from further victimization of the workers of the appellant-Union. So far as the application under section 151, C.P.C. For suspending the order of termination is concerned, we cannot undo the said proceedings as a contempt petition under section 22-C of the IRO has already been filed which although has been dismissed but the same is also being remanded back to the learned Member Single Bench and if it is found that the termination order was passed in violation of the status quo order, the proper action shall be taken by the learned Member Single Bench. With this observation this appeal is accepted. File of the appeal is consigned to record and the original file shall be sent back to the learned Member Single Bench.