' GHULAM NAUMAN SHAIKH (MEMBER).---This is petition under section 49(4)(e) of IRO, 2002 along with application under Regulation 32(2)(c) of NIRC (P&F) Regulations, 1973 supported by affidavit filed by the petitioner union, CBA through its General Secretary against the respondents.
2. The facts of the case as stated in the petition are that the petitioner union is CBA in the establishment of respondent No,1 since March, 2002 and till determination of next CBA, the petitioner has right to perform as CBA under section 22 of the IRO, 2002. It is submitted that the referendum proceedings are in progress since March, 2005. It is alleged that respondent No,4 instead to hold the referendum, has been postponing the same illegally and malafidely and had postponed the same for indefinite period vide letter, dated 21-5-2005 on the behest of management of respondent No,1, who desired to obtain result of the referendum in favour of a particular union. It is submitted that respondent No,4 had called a meeting for referendum on 3-3- 2006 vide letter, dated 27-2-2006 but due to general strike the meeting could not be held. The respondent No,4 on 4-3-2006 issued another letter with collusion of respondent No,1 that next date of meeting for the referendum will be informed later on at appropriate time and also mentioning therein that the issue related to charter of demands will be taken up after the disposal of issue of next CBA. It is alleged that respondent No,4 is not competent to issue such a letter and the A respondents Nos. 1 and 4 with collusion with each other are committing acts of unfair labour practice. It is submitted that respondent No,1 also had issued a circular, dated 20-2-2006 to all General Managers and all Departmental Heads seeking their comments in respect of counter charter of demands proposed to be served from the management side upon the CBA on 1-4-2006, but after letter, dated 4-3-2006 issued by the respondent No,4, the respondent No,1 also has issued a letter, dated 4-3-2006 that all the previous correspondence on the subject-charter of demands may be treated as cancelled till further orders. It is alleged that shows collusion of the respondents Nos.1 and 4 and a conspiracy being engineered by them as sort of unfair labour practice against the petitioner union. It is submitted that on one hand respondent No,1 had got letter, dated 4-3- 2006 issued from respondent No,4 and on the other hand respondent No,1 has entertained another union, namely, United Workers Front of KPT, which is a non CBA union and upon such consultation between the said union and the respondent No,1 management a pamphlet was issued by said union to the effect that the management of respondent No,1 had agreed to pay bonus to the workers. Next it is submitted that such a right of the meeting is of the petitioner union CBA and not of the United Workers Front of KPT, a non-CBA, as such petitioner union CBA is being deprived of his rights. Such pamphlet and publication in Daily Jang Karachi, dated 14-3-2006 and Daily Riasat, dated 14-3-2006 and Daily Jurrat, dated 14-3-2006 have been filed. It is submitted that it has been settled between petitioner CBA and the respondent No,1 management that work and functions, which could be performed by the KPT workers, would not be given on contract and even the vacant posts are required to be filled from the staff as well as son quota, but the same is not being implemented by respondent No,1 and on the contrary the management of respondent No,1 is determined to change the said terms and conditions already settled, thereby the respondents have issued notice in newspapers Daily Jang Karachi, dated 27-2-2006 and Daily Dawn, dated 27- 2-2006 that the Karachi Port Trust intends to privatize its cargo handling operations for container, bulk and break bulk cargo through Cargo Handling Companies, which is not under the scheme of Privatization Commission, as such the said acts of the respondents are illegal, mala fide and also serious acts of unfair labour practice. It, is, therefore, prayed to hold and determine the acts of the respondents as the acts of unfair labour practice against the petitioner union with collusion of each other, to restrain the respondent No,1 from entertaining any non-CBA union with the direction to entertain the petition union as Collective Bargaining Agent under the law till the holding of next referendum; and to prohibit them to commit further acts of unfair labour practice, to restrain the respondent No,4 for issuing any letter against the interest of petition union contrary to the provisions of law and may also direct them to hold referendum proceedings strictly in accordance with law as early as possible; and to avoid the indefinite delay in such proceedings on the behest of respondent No,1, to restrain he respondents Nos.l, 2 and 3 for changing agreed terms and conditions settled by the petitioner union through bilateral negotiations to the settlements and not handing over the work and function of Cargo Handling Operation to proposed Cargo Handling Company or any other company against the settled terms of the settlement.
3. Respondents Nos.l & 2 filed reply statement with preliminary legal objections on main petition and also reply on application under Regulation 32(2)(c) of NIRC(P&F) Regulations, 1973 supported by affidavit of Bashir Ahmed, Manager Legal affairs. Respondent No,4 also filed parawise comments with preliminary legal objections.
4. Respondents Nos.1 and 2 have raised the legal objection that petitioner union is a trade union registered with Provincial Registrar of Trade Unions, Sindh, Karachi, as such it cannot maintain petition before the Commission. The facts stated in the petition do not constitute unfair labour practice, as such the Commission has no jurisdiction. The allegations contained in the petition are denied. The allegation of collusion with respondent No,4 in delaying the referendum is denied. So also other acts as allegedly attributed by the petitioner union to the respondents Nos. 1 and 2.
Regarding the letter, dated 20-2-2006 written to all General Managers and all Heads of Departments seeking their comments for the counter charter of demands proposed to be served upon the petitioner CBA on 1-4-2006 and subsequent letter, dated 4-3-2006 that all the previous correspondence on the subject charter of demands may be treated as cancelled, it is submitted that no management would undertake any serious negotiations on charter of demands when question relating to determination of CBA is pending and moreover if negotiations are continued and no settlement is reached and the CBA is changed in the midstream the entire negotiating process be jeopardized and compromised. It is denied that answering respondents had got written letter, dated 4-3-2006 from the respondent No,4. It is also denied that the management of respondent No,1 in any way has undertaken any collective bargaining with United Workers Front of KPT. It is submitted that pamphlet and newspaper cuttings filed by the petitioner union do not concern with answering respondents because neither the management of respondent No,1 has announced any bonus nor the management of respondent No,1 has received any instructions from Ministry of Ports and Shipping or the Honourable Minister in respect of any tonus. It is denied that the management of respondent No,1 has violated any of operative settlement. It is submitted hat management of No,1 is sole Judge as to which particular function can be better performed by the employees of the respondent No,1 and which by outside organizations. It is exclusively for the management to decide as to how many persons are required and as to what functions can be more efficiently and effectively performed by its own manpower and what functions can be more efficiently and effectively done by outside agencies, as under section 83 read with schedule II of the IRO, 2002 it is right of the employer to manage, control and use property of enterprise and conduct business in any manner as considered appropriate by him and this right of the management has overriding effect over provisions of the IRO, 2002. It is submitted that entrustment of the job to appropriate and outside contractor does not constitute privatization as the term is defined in the Privatization Ordinance, 2000 because in this activity only functions will be outsourced and no property of KPT will be sold to outsiders.
5. Respondent No,4 in parawise comments has raised legal objection that determination of CBA is within exclusive jurisdiction and domain of respondent No,4 and this Commission has no jurisdiction, as an appellate Court. It is submitted that proceedings of referendum for determination of CBA in this very sensitive National importance Organization are to be carried out taking into account various related facts including law and order situation and any certain adverse consequences as may arise on or before polling day, as such, respondent No,4 has to take all necessary precautions. It is submitted that the petitioner has raised various charges against the rival union, namely, United Workers Front of KPT, but the petitioner has not made the said union as party in the petition, which is mala fide act on the part of the petitioner union. It is submitted that the petitioner union was certified as CBA as result of last referendum held in March, 2002. For determination of next CBA, proceedings are pending and the matter will be finalized on satisfaction of various related facts. All the allegations of the petitioner against respondent No,4 in the petition are denied. Regarding the matter pertaining to the charter of demands as mentioned in letter, dated 4-3-2006, respondent No,4 has submitted that it had been incorporated in good faith and in the context that three years period of -holding last referendum had already passed much earlier and it may be in all fairness that fresh charter of demands may be taken up by next elected CBA, whosoever it may be. The respondent No,4 also has denied that letter, dated 4-3-2006 has been issued by respondent No,4 under the influence of respondent No,
1. It is submitted that respondent No,4 being Government Functionary is performing its legal and lawful functions as laid down under the related provisions of law and the petitioner has levelled baseless allegations with ulterior motive and mala fide intention, so as to justify to file the petition and for creating jurisdiction of this Commission over the lawful functions of answering respondent. Respondent No,4 has denied to have committed any act of unfair labour practice.
6. No affidavit-in-rejoinder was filed by the petitioner union.
7. I have heard arguments of Ch. Latif Saghar, learned advocate for the petitioner union and Mr. Shahid Anwar Bajwa, learned advocate for the respondents Nos. 1 and 2. Respondent No,4 has not advanced, arguments, but has relied on the parawise comments and legal objections raised therein.
8. Ch. Latif Saghar, learned advocate for the petitioner has contended that the petitioner is CBA since March, 2002. Even after expiry of three years the status of the petitioner union as CBA is recognized under section 22 of the IRO, 2002. It is submitted that referendum proceedings for determination of next CBA are pending before respondent No,4 since March, 2005. Respondents Nos.1 and 4 are in collusion and are making conspiracy against the petitioner union and creating such circumstances, that the petitioner union may be defeated in the referendum. Respondent No,4 is, therefore, delaying the referendum and postponing the same on the pretext of unavoidable circumstances. It s submitted that respondent No,4 had called a meeting for the referendum on 3- 3-2006, but since there was strike no union could attend the meeting. On 4-3-2006 respondent No,4 issued a letter that next date will be informed later on at appropriate time and also mentioned that issue of charter of demands will also be taken up after the disposal of issue of next CBA. It is submitted that this letter is contrary to the provisions of section 22 of IRO, 2002, as the petitioner union during the referendum proceedings can act as CBA. It is submitted that respondent No, 1 had issued a letter to all General Managers and all Heads of the Departments seeking their comments regarding counter charter of demands to be served from the Management side upon the petitioner Union CBA on 1-4-2006. After letter, dated 4-3-2006 issued by the respondent No,4, the respondent No,1 also issued a letter, dated 4-3-2006 to all General Managers and all Heads of the Departments that correspondence on the subject charter of demands may be treated as cancelled. This shows collusion of respondents Nos. 1 and 4. It is submitted that a pamphlet has been issued by United Workers Front of KPT and there are also publications in Daily Jang, dated 14-3-2006, daily Jurrat, dated 14-3-2006 and Raisat, dated 14-3-2006 filed as Annex. F with the petition regarding order by the Minister for Ports and Shipping to respondent No,1 management to pay bonus to the workers. It is submitted that this is conspiracy against the petitioner union so as to give the petitioner union set back in the referendum. It is submitted that there was a settlement in the year, 1992, wherein on demand 124 it was agreed that the work, which KPT workers can do in a proper way would not be given on contract. This Clause of the said settlement continued to be incorporated in the next settlements. It is submitted that despite that said terms of the settlement, respondent No,1 intends to privatize its cargo handling operations for container, bulk and break bulk cargo through Cargo Handling Companies contractors and such notice for pre-qualification has been issued in daily "fang" and daily "Dawn", dated 27-2-2006 filed as Annex. H and H/1 with the petition. It is submitted that the acts on the part of respondent No,1 management are also that of discrimination against petitioner union, as such are acts of unfair labour practice. In support of his contention Ch. Latif Saghar, learned advocate for the petitioner union relied upon on order, dated 10-8-2005 passed by this Bench of Commission in case bearing Case No,4A(95)/2005-K. (Sui Southern Gas Workers Union (CBA) v. Sui. Southern Gas Company Limited), order of learned Chairman, NIRC passed in case of Mazdoor Union Neelam Glass Industries Limited v. Neelam Glass Industries Limited reported in NLR 2005 TD (Labour) 24, order of learned Chairman, NIRC in case of Syed Shaida Hussain Zaidi, Vice-President and Zonal Chief, Allied Bank of Pakistan Ltd. v. Anwar Hamid (President) and Bashir Ahmed (General Secretary) Allied Bank Staff Union reported in 1980 PLC 540, order of Full Bench of NIRC in case of Muhammad Ashiq v. Executive Engineer, WAPDA, Kasur reported in 1985 PLC 488, order, dated 6-12-2005 of Full Bench in Appeal No,12(8) of 2004, Chief Engineer and Project Director (Water), South, WAPDA Offices, Central Building, Sahra-e-Fatima Jinnah, Hussainabad, Hyderabad v. Abdul Jabbar son of Moula flux, 1991 SCMR 1041, judgment of Full Bench of Honourable Supreme Court of Pakistan reported in 1999 SCMR 819=1999 PLC (C.S.) 409, 2001 PLC (C.S.) 794 (Quetta High Court), 2000 TD (Labour) 168 (Larger Bench NIRC), 1999 PLC 57 (Full Bench NIRC), PLD 1981 SC 612, 1992 PLC 424 (Supreme Court of Pakistan), 1992 PLC 1012 (Karachi High Court), 1992 PLC 1098 (Chairman NIRC) and 1992 PLC 1028 (Karachi High Court).
9.. Mr. Shahid Anwar Bajwa, learned advocate for the respondents Nos. 1 and 2 has contended that petitioner union was certified as CBA in March, 2002. After three years of its certification referendum was to be held. There are three registered trade unions in the respondent establishment. One of the union has ,submitted application under section 20(2) of the IRO, 2002 to the respondent No,4 for holding the referendum for determination of CBA. The referendum is to be held by the respondent No,4, which is public functionary, as such no injunction can be granted against him under section 56 of the Specific Relief Act. It is contended that respondents Nos. 1 and 2 have nothing to do with the said referendum proceedings. The only obligation on respondents Nos.1 anck2 is to provide facility for holding the referendum and to furnish list of the workers employed. Mr. Shahid Anwar Bajwa, learned advocate for respondents Nos. 1 and 2 has submitted that he makes categorical statement that respondents Nos. 1 and 2 have no instructions and orders from the Ministry of Ports and Shipping regarding payment of bonus to the workers. The management of respondent No,1 cannot be held responsible for the pamphlet issued by United Workers Front of KPT. It is propaganda and campaign of the said union. It is also contended that management of respondent No,1 has not held any negotiations with United Workers Front of KPT a non-CBA union.
The newspaper cuttings filed with the main petition are relating to the meeting of office-bearers of United Workers Front of KPT with the Honourable Minister of Ports and Shipping, for which respondents Nos. 1 and 2 have no connections whatsoever. It is contended that demand 124 as referred by learned advocate for the petitioner union in his arguments, will also show that any work, which cannot be done by the workers, can be given on contract by the management of respondent No,1, who is sole Judge as to which work can be performed by their employees and which by outside organization. This right of respondent No,1 is enshrined under section 83 read with Chapter-II of IRO, 2002;Mr. Shahid Anwar Bajwa, learned advocate for the respondents Nos. 1 and 2 has contended that petitioner union has written a letter, dated 24-1-2006, which is at page 69 to the respondent No,1, making some queries and the language used therein will show the attitude and conduct of the petitioner union. It is submitted that the petitioner union is not an industrywise trade union, but a trade union registered with Provincial Registrar of Trade Unions, as such the petition filed by it will not be maintainable. It is submitted that nowhere it is stated that as to who is being discriminated by the respondent No,
1. It is contended that averments made in the petition do not constitute unfair labour practice, as such not only application under Regulation 32(2)(c) of NIRC (P&F) Regulations, 1973 is liable to be dismissed but main petition also be dismissed.
10. I have considered arguments advanced by learned advocates for the parties and have gone through the petitioner, application under Regulation 32(2)(c) of NIRC (P&F) Regulations, 1973, supporting affidavit, reply statement with preliminary legal objections on main and counter affidavit on stay application filed by the respondents and also documents produced by both the parties.
11. The petitioner union was certified as CBA in March, 2002. It appears that after expiry of three years of its certification an application was made by another union to the Registrar of Trade Unions, Sindh, Karachi, respondent No,4 for holding the referendum for determination of next CBA, which proceedings are pending before him. The petitioner union in the petitioner has alleged collusion of respondent No,1 and respondent No,4 in delaying the referendum proceedings with conspiracy to get the petitioner union defeated in the referendum. The allegations are also levelled against the management of respondent No,1 for entertaining another union, namely, United Workers Front of KPT, which is non-CBA, which has issued pamphlet and go published in newspapers Daily "Jang", Daily "Raisat" and Daily Jurrat", dated 14-3-2006 that management has agreed to pay bonus to the workers, which according to the petitioner union is depriving it of its right as CBA of holding negotiations with the management of the respondent No,
1. Beside these allegations, the petitioner union has levelled allegations that despite the agreed demand in the settlement of the year, 1992 and being incorporated in subsequent settlements that no work, which can be better performed by the KPT workers, will be given on contract, the respondent No,1 has published notice for pre-qualification in Daily "Jang" and Daily "Dawn", dated 27-2-2006, that Karachi Port Trust intends to privatize the Cargo handling operations for containers, bulk and break bulk cargo through Cargo Handling Companies, which amounts to changing of terms and conditions of workers already settled and it is violation and non-implementation of the said terms of settlement by the respondents Nos. 1, 2 and 3 in collusion with each other just to get, the petitioner union defeated in the next referendum. The same are at large not only illegal, mala fide but also are serious acts of unfair labour practice, as the terms and conditions can only be changed through bargaining settlement. These allegations of collusion and conspiracy by the respondents against the petitioner union so as to get it defeated in referendum, which is being held by the respondent No,4 for determination of next CBA, have been denied by the respondents in their comments and the petitioner union has not preferred to file any rejoinder. Such factual oral allegations in view of the denial by the respondents will require evidence of the parties to be adduced by them so as to substantiate their respective versions.
' For the aforesaid reasons, I am of the view that the petitioner union on mere assertions in the petition without any evidence to establish the same, will not be entitled for interim relief as prayed in the application under Regulation 32(2)(c) of NIRC (P&F) Regulations, 1973, which is accordingly dismissed. To come up on 10-4-2006 for filing affidavit-in-evidence by the petitioner.
' Announced in open Court.