PIR AL1 SHAH, PRESIDING OFFICER - By this common order I propose to decide all the above matters as common facts and legal points are involved in these matters.
2. Briefly stated the facts of the above case 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, 200'2 which was received to the applicants on 26th November, 2002. Grievance notice under Section 46 of Industrial Relations Ordinance, 2002, 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 were 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 unite 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 behest of the Director of the company. It is further stated that initially the applicants were a member 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 C.B.A. 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 severely 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 it enviable to continue with production of sodium bichromate. It is further stated that the plea of the management as mentioned in the termination order and referred in the above preceding para is totally incorrect, false and fabricated having far from truth, being misconceived, malicious and mala i.e, based on ulterior motives as the ground for such plea 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 no 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 were 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.
3. In rebuttal, Respondent's have filed Preliminary legal objections and Para-wise comments on behalf of the respondents. It is stated that the present application 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 vexations. That the provision 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 Orders 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, 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 they are vehemently denied as false, baseless and mischievous except execution of agreement between C.B.A, 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 reorganize the business of manufacturing process at the factory/plan 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 fad, the" then C.B.A. Representing the workers arrived at a collective bargaining settlement/Agreement dated 25.10.1994 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 re-commencements of manufacturing of sodium bicarbonates at the local level or otherwise any vacancy arose in future, the same would be. Filled in by 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 fn his category. That the respondent management fully adhered to the terms of the settlement executed between the. Then C.B.A. '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 C.B.A. 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, respondent management was per forced to stop, for the time being, any further manufacturing of sodium bichromates and basis chromium sulphate at present.
Realizing the said facts, the C.B.A. Representing the worker arrived at a collective bargain settlement/agreement dated 01.07.2002 for settling the existing adverse situation of the respondent company. It is further stated that the allegations made in the para 9 and ground are vehemently denied as false baseless and unfounded. It is stated that other worker including, the applicants purposefully and deliberately concealed the facts more spherically the collective bargaining settlement dated 01.07.2002 and with mala i.e intention filed petitions bearing Nos. 4A(194)/2002.
And 24(195) 2002 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 parte prohibitory order dated 04.07.2002 from learned NIRC Bench 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 1.07.2002. Consequently, the affected 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 dismissed the case fifed by the applicant and other workers vide order dated 12.11.2002. It is further stated that on 18.07.2002 at 8.00 a.m. M/s. 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 behaviours and also threatened that they will enter into the factory, on 19.07.2002 at 7.00 a.m. If not allowed will, resort to further physical violence and further threatened that they will not allow 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 the 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 Nos. 4-A(238)/2002/24 (239)/2002 under Section 22-A(8)(g) of I.R.O., 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 N.I.R.C. Bench at Karachi confirmed the prohibitory order in favour of the respondent vide order dated 12.11.2002. The said proceedings are sub-judices. 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 surplus 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.
4. Now the points for determination will be as follows:-
(1) Whether applicant's case filed under section 46 of IRO, 2002 is maintainable?
(2) Whether applicant was illegally terminated from employment?
(3) Whether applicant is entitled for the relief claimed?
5. 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.
6. I have heard both the learned counsel of the parties and have carefully gone the case papers.
REASONS POINT NO. 1: The case of the applicant is that he was illegally terminated from service. In rebuttal there is. Denial on 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 01.07.2002. 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 short time the position was revived and workers were re- employed through C.B.A. Agreement executed with the management. -In the instant case, present applicant along with others were discarded from service and that all offered for resignation which were accepted by the management. It is not the case of the applicant that his resignation was not voluntarily. In his cross-examination applicant has clearly admitted that uptill now relevant department is closed in the respondent factory and that the same is not functioning. Applicant has further admitted that ' he had received his outstanding dues/amount. It, therefore, followed that the applicant upon his resignation had received his outstanding dues as full and final settlement.
In case, outstanding amount remained towards the respondent management, then the applicant is at liberty to i.e case against the respondent management separately and proper remedy under the relevant provision of law. As regards to reinstatement the case of applicant is hardly maintainable as after receipt of full and final payment/dues and that too, on tendering resignation voluntarily, it is, therefore, concluded that the applicant's case filed under Section 46 of I.R.O., 2002 is not maintainable in the eye of law.
7. POINT NO. 2: I have already discussed above that the applicant has tendered resignation voluntarily and he had received full and final payment on account of his dues/amount. In these peculiar circumstances of the case, it cannot be said that he was illegally discarded from service.
My finding on point No. 2 is therefore, in negative.
8. POINT NO. 3: In view of my findings on points Nos. 1 and 2 the applicant is not entitled for any relief as he has received full and final dues upon his tendering resignation voluntarily. Consequently, his case filed under section 46 of I.R.O , 2002 is dismissed.
Announced in open Court.
Given under my. Hand and the seal of the Court, this the 20th day of September, 2006.