' GHULAM NAUMAN SHAIKH (MEMBER).--- This is petition under section 49(4)(e) read with section 33 of the I.R.O., 2002 along with application under Regulation 32(2)(c) of NIRC(P&F) Regulations, 1973 supported by affidavit filed by Messrs Crescent Food Industry through its Partner Muhammad Saddiq Shaikh petitioner against the respondents.
2. The facts of the case as stated in the petition are that the petitioners are an establishment registered under the Factories Act, 1934 and are engaged in manufacturing of biscuits. There are 30 workers employed in the petitioners establishment. It is submiitted that in January, 2004 a trade union by the name and style Crescent Food Industries Workers Union has been registered in the petitioner establishment. Respondents Nos. 1 to 5 are employed with the petitioners and are office- bearers of the respondent No,6 union, which is not CBA. It is alleged that after registration of the said trade union, the respondents started intimidating and threatening the employer of the petitioners establishment by raising illegal and unjustified demands orally and not by any written notice of demands. It is alleged that on 10-2-2004, the respondents and other workers connected with them created law and order situation in the factory and damaged the machinery and ceased the entire plant of the factory. Further they broke glasses of the production room and raised provocative slogans, gheraoed and gathered in the factory and instigated the workers not to perform any work. As result of said instigation, the workers resorted to illegal strikes from 10-2-2004 at about 12-00 noon, which is still continuing and the petitioners had reported the matter to the Directorate of Labour, Hyderabad vide letter, dated 10-2-2004 and also submitted Form 'Y' to the Additional Director Labour, Hyderabad Region, filed with the petition as Annexures "A" to "M. It is alleged that the respondents have taken law into their own hands and resorted to illegal strike. F.I.R.
Was also lodged by the petitioner on 14-2-2004 at Police Station Sakhi Peer, Hyderabad and the respondents were also issued charge-sheets, dated 10-2-2004 for committing acts of misconduct and also on 11-2-2004, which were sent to them under registered post A.D. Some were served on them, but some were returned undelivered, as such the petitioner are trying to serve the same on the respondents through publication in newspaper. It is submitted that the letter was received by the petitioners from Assistant Director Labour, .Hyderabad regarding alleged illegal lock out, which was replied by the petitioner to the Directorate of Labour vide letter, dated 17-2-2004 apprising the factual position filed as Annexure "W" with the petition. It is submitted that the petitioners tried their best to start work, but the respondents have shown their adamant attitude and are not prepared to resume work and to start production, hence illegal strike is continuing, for which the petitioners have apprised to the Directorate of Labour, Hyderabad. It is alleged that above acts on the part of respondents and other workers connected with them constitute acts of unfair labour practice as enunciated under section 64 of the I.R.O., 2002 and this Commission has, therefore, jurisdiction to deal with the petition under section 49(4)(e) of the I.R.O., 2002. It is submitted that the respondent No,6 union is neither C.B.A. Nor any notice of demand has been served, as such all the acts on the part of the respondents and other workers connected with them are illegal, unwarranted and against the provisions of law, hence this petition with prayer to take cognizance of unfair labour practice on the part of the respondents and further restrain them and other workers connected with them from committing acts of unfair labour practice and to pass prohibitory order to retrain the respondents from raising slogans, resorting go-slow, gathering and instigating workers, interfering in the acts of administration, raising illegal and unjustified demands, to direct the respondents to recall the illegal strike and resume work immediately, not to damage machinery and other property belonging to the establishment and refrain from interfering in the acts of administration and to conduct themselves and their affairs in a manner calculated to avoid occurrence of the acts of unfair labour practice and also to allow the petitioners to engage and employ fresh workers in case the respondents and other workers connected with them fail to recall the illegal strike and to resume work in the establishment within a period of 48 hours from the receipt of prohibitory order if so passed by this Bench of Commission so as to avoid further loss of production.
3. On presentation of the petition ad interim prohibition order, dated 20-2-2004 was passed by this Bench of Commission, whereby the respondents were directed not to go on illegal strike and to call off their illegal strike forthwith. They were further restrained from raising slogans, staging demonstration or hurling abuses against the management and further they were directed to resume their duty forthwith and in case of their failure within 48 hours from today, the management will be at liberty to appoint other workers in their place and to carry on their business, which continues from day to day.
4. The respondents filed comments on main petition and counter affidavit on stay application. The respondents denied to have instigated the workers or resorted to illegal strike. They denied to have damaged the machinery and ceased entire plant of the factory and broken glasses of the production room and raised provocative slogans, gheraoed and gathered in the factory. The respondents admitted to have received charge-sheets and replied the same. According to the respondents on 11-2-2005 the petitioner did not take the respondents and other 72 workers on duty and resorted to illegal lock out. It is alleged that F.I.R. Was lodged by the petitioner to harass the respondents and pressurize them from police. It is submitted that the respondents have made complaints. The UC Nazim also intervened, so also City Nazim also had convened the meeting, but the petitioner refused to have negotiations.
5. Affidavit-in-rejoinder was filed by Muhammad Sadiq, Partner of the petitioners establishment.
6. I have heard arguments of Mr. Mahboob Rizvi, learned advocate for the petitioner and Rana Mahmood Ali Khan, learned labour representative for the respondents.
7. Mr. Mahboob Rizvi, learned advocate for the petitioner has contended that the respondents have instigated other workers and have resorted to illegal strike and also damaged machinery and ceased entire plant and broken glasses of the production room and raised provocative slogans on 10-2-2004 and continued to commit the said acts of unfair labour practice. The Petitioner have sent form 'Y' to the Additional Director Labour, Hyderabad Region, Hyderabad/Conciliator for every such date of illegal strike by the respondents, which have been filed as Annexures "A" to "M" with the petition. Photostat copies of photographs, showing the damage to the property of the petitioners also have been annexed with the petition and original photographs were produced before my learned predecessor at the time of admission of petition on 22-2-2004, when ad interim prohibitory order was passed, which were seen and returned. It is contended that F.I.R. Was also lodged by the petitioners on 14-2-2004 at Sakhi Peer Police Station. It is contended that only 30 workers were employed in the petitioners factory. After passing of ad interim prohibitory order, dated 20-2-2004, whereby the respondents and other workers were directed to call off their illegal strike, only 17 workers reported for duty and they continued to perform their duty. Rest 13 workers including the respondents did not report for duty. Out of them, six workers have been dismissed from service. He has contended that version of the respondents that there were 90 workers employed in the petitioner establishment is false as only 30 workers have been working, for which the petitioners are paying Sindh Employees Social Security Institution and EOBI contribution, the documents whereof have been placed on record as Annexures "P/1" to "P/29" with affidavit-in-rejoinder. It is contended that wage register for the period from December, 2003 to June, 2004 Annexure "P/30" has also been placed on record with affidavit-in-rejoinder, which also shows that there were only 30 workers employed with the petitioners. It is contended that the respondents have taken inconsistent version regarding number of employees working in the petitioner's establishment. Initially in their comments the respondents stated that there were 90 workers employed by the petitioners, out of them 72 including the respondents are the members of Crescent Food Industries Workers Union, but at subsequent stage of proceedings of the case, the respondents with their counter affidavit filed on 20-11-2004 have filed salary statement of respondents for the months of December, 2003 and January, 2004, Annexure "R/11", showing therein the number of workers as 111. It is contended that this salary statement does not belong to the petitioner establishment, but the same has been falsely prepared by the respondents in connivance with Syed Shahid Ali, who has been served with charge-sheet for preparing such a bogus and forged salary statement in connivance with the respondents, which has been filed as Annexure "P/34" by the petitioner on 14-12-2004. It is contended that untruth of this statement is apparent from the fact that salary of Syed Shahid Ali at SI. No,92 in this salary statements is shown as Rs,10,000 per month, whereas in fact salary of Syed Shahid Ali is Rs,4,000 per month, as it shall appear from the wage register for the period from December, 2003 to January, 2004 filed by the petitioners with affidavit-in-rejoinder as Annexure "P/30". So also sheet of Sindh Employees Social Security Institution contribution of the workers for the period from December, 2003 to August, 2004 filed by the petitioners as Annexures "P/1" to "P/21" with affidavit-in-rejoinder, showing salary of Syed Shahid Ali as Rs,4,000 per month and the said sheets bear signature of Syed Shahid Ali, who has prepared the same. It is contended that Sindh Employees Social Security Institution contribution also has been paid in respect of Syed Shahid Ali as he has been drawing the salary of Rs,4,000 per month, and had Syed Shahid Ali been drawing salary of Rs,10,000 per month, the petitioners would have not paid his contribution to Sindh Employees Social Security Institution. Mr. Mahboob Rizvi, learned advocate for the petitioners has contended that the respondents have instigated other workers and have resorted to illegal strike and pressurized the petitioners to take 72 workers on duty, who are not employees of the petitioners. The strike resorted to by the respondents is not related to an industrial dispute, as such it is an illegal strike. To commence, continue, instigate or incite others to take part in an illegal strike is an act of unfair labour practice under section 64(1)(f) of I.R.O., 2002. The petitioners, therefore, have prima facie case and balance of convenience lies in their favour and they will suffer an irreparable loss if the interim prohibitory order is not confirmed.
8. On the other hand Rana Mahmood Ali Khan, learned labour representative for the respondents has contended that the petitioners had gate stopped 72 workers, including the respondents due to formation and registration of the trade union by them in the name and style of Crescent Food Industries Workers Union. It is submitted that the petitioners also have issued charge-sheets to the respondents for the same allegations, for which the respondents filed petition bearing.
No,4A(19)2004-K and got interim prohibitory order from this Bench of Commission. He has contended that on the same allegations the petitioners had also filed a F.I.R. No,37 of 2004 at Police Station, Sakhi Peer, Hyderabad, which has been quashed by the Honourable High Court of Sindh, Circuit Bench, Hyderabad. It is submitted that because the F.LR. Has been quashed, as such the petitioners will have no prima facie case of unfair labour practice on the allegations of illegal strike levelled against the respondents. It is contended that in case of illegal strike jurisdiction lies with the Labour Court to deal with the same on the report made to it by the officer of the Labour Department not below the rank of Assistant Director Labour Welfare as laid down under section 39 of I.R.O., 2002 and NIRC has no jurisdiction in the matter. It is submitted that no such complaint has been filed by the officer of the Labour Department before the Labour Court. It is contended that the respondents had made a complaint to Additional Director Labour, Hyderabad Region, Hyderabad, regarding illegal lock out by the petitioners and on their complaint Mr. Ahmed Bux Aftab, Assistant Director Labour had visited the factory on 12-2-2004 and submitted his report, dated 23-2-2004, which has been filed as Annexure "R/17" with the comments by the respondents. It is submitted that City Nazim, Hyderabad also had convened joint meeting with the petitioners and office-bearer of the union, wherein owner of the factory had accepted number of workers to be 58.
9. I have considered arguments of Mr. Mahboob Rizvi, learned advocate for the petitioner and Rana Mahmood Ali Khan, learned advocate for the respondents and have gone through the petition, application under Regulation 32(2)(c) of NIRC (P&F) Regulations, 1973, supporting affidavit, comments and counter affidavit filed by the respondents and affidavit-in-rejoinder filed by the petitioners.
10. In the present case, respondents Nos.
1. To 5 are office-bearers of Crescent Food Industries Workers Union and respondent No,6 is trade union, which admittedly is not C.B.A. From the facts and circumstances, as it emerges from the record, although the respondents, Nos.1 to 4 are not office-bearers of C.B.A., they had been pressurizing the petitioners to take on duty 72 workers, who according to the petitioners are not in their employment. On 10-2-2004 and 11-2-2004 the respondents instigated other workers and also they along with other workers resorted to illegal strike to pressurize the petitioners to accept their illegal demand to take on duty 72 workers, who according to the petitioners were not in their employment. They also allegedly broke the glass of the production room, raised slogans against the management of petitioner. Photo copy of such photographs have been filed by the petitioners with the petition and original were seen and returned by my learned predecessor at the time of admission of the petition, as it appears from the interim order, dated 20-2-2004. Form 'Y' w,e,f, 10-2- 2004 to 17-2-2004. Sent to the Additional Director Labour, Hyderabad Region, Hyderabad have also been filed as Annex. G to M with the petition. The petitioner also has served charge-sheets on the respondents, which have been filed as Amiexures "0" to "V" with the petition.
11. With regards to allegation of the respondents that the petitioners had declared lock-out it shall be pertinent to mention that the petitioners had submitted reply, dated 17-2-2004 to the Assistant Director Labour, which has been filed as Annex. W with the petition, wherein the petitioners had denied the allegation of illegal lock out and had submitted that the office-bearers and members of Crescent Food Industries Workers Union had caused damage in the factory and had resorted to an illegal strike with effect from 10-2-2004. Form 'Y' was also sent. It was requested to take action so that the respondents might call of illegal strike, so to save the petitioners from further loss.
12. The petitioner in para-11 of the petition has shown their apprehension that said situation of illegal strike may continue unless this Honourable Bench of Commission interfere in the matter and may pass order to call off the illegal strike and prohibit the respondents office-bearers and through them other workers from committing further acts of unfair labour practice. Ad interim prohibitory order, dated 20-2-2004 was passed by this Bench of Commission, directing the respondents not to go on illegal strike and to call off illegal strike forthwith. They were restrained from raising slogans, staging demonstration or hurling abuses against the management. They also were directed to resume their duty forthwith and in case of their failure within 48 hours, the management would be at liberty to appoint other workers in their place and to carry on their business. According to the petitioners, the respondents did not comply the said interim prohibitory order, dated 20-2-2004.
Against disobedience of the interim prohibitory order, dated 20-2-2004 by the respondents, the petitioners have filed contempt proceedings bearing No,7(04)/2004-K. It appears that the respondents are still pressurizing the petitioners management to accept their illegal demand to take on duty 72 workers, who according to the petitioners are not in their employment. So far nothing has been produced by the petitioners to show that 72 workers, for whom they have been pressing the petitioners to take ther on duty are in the employment of the petitioners. F.I.R. Bearing No,37 of 2004 lodged by Muhammad Saddiq, partner of the petitioners on 15-2-2004 at Sakhi Peer Police Station, Hyderabad, which was quashed by the Honourable High Court of Sindh, Circuit Bench, Hyderabad by short order, dated 17-12-2004 and detailed order, dated 3-2-2005 relates to the incident of 14-2-2004 for forming of unlawful assembly by the respondents, rioting armed, with weapons riminal intimidation to cause hurt, causing damage and loss to the property and the machinery of petitioner and does not relate to illegal strike resorted to by the respondents since 10- 2-2004, as such order of quashment of F.I.R. No,37 of 2004 Sakhi Peer Police Station by the Honourable High Court of Sindh, Circuit Bench, Hyderabad will have no effect on the present case, which relates to the illegal strike, resorted by the respondents and the same falls under the ambit of unfair labour practice as enunciated under section 64(1)(t) of I.R.O., 2002.
13. For the said act of illegal strike, the petitioners also have served charge-sheets on the respondents and disciplinary proceedings are pending against the respondents. In case of the Manager, Khewra Salt Mines, Khewra v. The Mines Employees and Labour Union Khewra through General Secretary of the union and another reported in 1976 PLC 259 the Honourable High Court observed that a strike can be valid and lawful only if it has come about in accordance with and in the situation as envisaged by law. In case of M.M. Isphani Ltd. v. (1) Isphani COmpany Officer Employees' Association, Chittagong, (2) The Province of East Pakistan (3) A. Awal, First Industrial Tribunal Dacca reported in 1960 PLC 35, Honourable Supreme Court of Pakistan at page 42 observed that the right, to strike is recognized by the law as being vested in industrial workers, for employment only as an instrument for settlement of industrial disputes. Further it was observed that a strike is in many respects a calamity. The cessation of work involves at least temporary loss of wages to the workers, but to the employer there is injury of many different kinds from the stoppage of his factory or business e.g. Accumulation of overhead charges while income is reduced to nothing, loss of business, and of standing in the trade through unfavourable publicity, etc. It shall appear that strike resorted to by the respondents is not in accordance with the situation as envisaged under the provisions of section 31(1) of the I.R.O., 2002. From the facts and circumstances on record at present it appears that the petitioners have prima facie case as the petitioners by their assertions and documents have been able to show that there had been only 30 workers in the employment of the petitioners, whereas the respondents have not been able to establish by any document that 72 workers, to whom they claim to be members of Crescent Food Industries Workers Union, were also in the employment of the petitioners. The respondents at subsequent stage C with counter affidavit of Muhammad Imran Shaikh, respondent No,2 filed on 20-11-2004 on the affidavit-in-rejoinder of Muhammad Saddiq, Partner of the petitioners, filed statement of salary for the months of December, 2003 and January, 2004, showing therein 111 workers to have been employed by the petitioners, which bear signatures of Syed Shahid Ali, who also is shown as worker at SI. No,92 of this salary statements, Annexures "R/11" and "R/12", for which petitioners have served a charge-sheets on Syed Shahid Ali, which has been filed as Annexure "P/34" with the affidavit of Muhammad Saddiq, Partner of petitioners filed on 14-12-2004. In this charge-sheet against Syed Shahid Ali it is alleged that salary statements were forged and bogus and had never been prepared by the petitioners and the same were prepared only as an effort by the General Secretary of Crescent Food Industries Workers Union in connivance with Syed Shahid Ali to misguide and mislead the NIRC and that Syed Shahid Ali had himself prepared Sindh Employees Social Security Institution and EOBI contribution sheets, showing 30 workers the employment of the petitioners and his salary also to be Rs,4,000 per month and not Rs,10,000 per month, as shown in the computerized salary statements for December, 2003 and January, 2004 and also that out of these 111 workers shown in bogus and forged salary statements only 30 workers were employed by the petitioners and rest 83 had no any relationship of employment with the petitioners and the list of 111 workers was false.
' For the aforesaid reasons I am of the considered view that the petitioners have been able to make out a prima facie case for confirmation of interim prohibitory order, dated 20-2-2004 and balance of convenience also lies in favour of the petitioners as in case the respondents will resort to illegal strike, the same will cause financial loss to the petitioner management and also loss to the Govt.
Revenue and taxes, and the same will cause an irreparable loss and injury to the petitioners, whereas the respondents will not suffer any irreparable loss or injury if the interim prohibitory order is confirmed. Accordingly I allow application under Regulation 32(2)(c) of NIRC(P&F) Regulations, 1973 filed by the petitioner management and confirm the interim prohibitory order, dated 20-2- 2004. To come up on 14-7-2005 for filing affidavit-in-evidence by the petitioners.
' Announced in open Court.
Interim .