' GHULAM NAUMAN SHAIKH (MEMBER).--- All the above mentioned five petitions are being disposed of by this common order as the facts and law involved in all the five petitions are same.
2. The facts of the case as stated in the petitions are that the petitioners are employed as Front Office Cashier in the respondent establishment. The respondents proposed to re-designate the petitioners as Guest Service Officers. The petitioners, therefore, filed individual petitions bearing Nos.4A(136) of 2004-K, 4A(138) of 2004-K, 4A(137) of 2004-K, 4A(146) of 2004-K, and 4A(140) of 2004-k, before this Bench of Commission on apprehension that upon re-designation as Guest Service Officers they would be deprived of their right of trade union activities being workmen. The said petitions filed by the petitioners were disposed of/dismissed by common order, dated 20-1- 2004 by this Bench of Commission with the observation that mere giving designation as officers without raise in their salaries and without assigning them duties of officer, they will not become officer to be deprived of trade union activities. Thereafter the respondents issued letter, dated 24-1- 2004 mentioning therein that the petitioners were promoted as Guest Service Officers, but in fact it was not a promotion but re-designation as the nature of duty of the petitioners remained the same and there was no any incentive or increase in salary and as such the status of the petitioners remained as workmen in terms of observation passed by this Bench of Commission. It is stated that the petitioners are active member of Pearl Continental Hotel Karachi Workers Union, CBA. It is submitted that the respondents stopped the subscription of the petitioners being paid as check- off as such contribution of the union now is being paid by the petitioners directly to the union. It is submitted that dispute to this effect is pending before the Sindh Labour Court No, V., Karachi as well as Honourable High Court of Sindh, Karachi. So also industrial dispute raised by. CBA is pending before the Area Conciliator ,since January, 2003, but till now no settlement has been arrived. It is submitted that various cases filed by the CBA as well as the management are pending before the Labour Court, High Court of Sindh Karachi and Honourable Supreme Court. It is alleged that the management of the respondents has got registered a pocket union, namely. Pearl Continental Hotel Star Labour Union and the respondents were putting pressure on the petitioners to disassociate from the CBA union and to join newly formed pocket union. It is alleged that on 14-12- 2004 the petitioners were called in the office by Acting H.R.M. And were given 15 days time to disassociate from the CBA union and to join newly formed pocket union, Pearl Continental Hotel Star Labour Union, failing which to face consequences including dismissal/termination from service and also were threatened that they would be deprived from trade union activities and would be treated as supervisory staff, which is against the order of this Bench of Commission. The CBA union also protested against such discrimination/unfair labour practice vide letter, dated 23-11-2004. It is submitted that the respondents then have issued a circular, dated 7-12-2004, thereby combining the duty of Front of Office Cashiering and checking in/out function including the petitioners. It is alleged that such policy if implemented would affect the right of the petitioners in terms of order, dated 20-1-2004 passed by this Bench of Commission, hence the petitioners have filed the above said petitions with prayer to declare the acts of the respondents of unfair labour practice and to restrain the respondents, its officials, subordinates, agents and representatives from dismissing, discharging, removing, terminating, retiring or any other act which affect the terms and conditions of the petitioners with further direction that the status/position of the petitioners as unionized staff may not be disturbed/changed till the disposal of the petitions.
3. Along with main petitions, the petitioners have filed applications under Regulation 32(2)(c) of NIRC(P&F) Regulations, 1973 supported by affidavits in their respective petitions, whereon interim prohibitory order, dated 7-1-2005 was passed by this Bench of Commission, thereby restraining the respondents from dismissing, terminating or taking any action adverse to the employment of the petitioners and not to discontinue the salary and allowances, which are being paid to the unionized staff till the next date, which continues from date to date.
4. The respondents filed reply statements with preliminary legal objections on main petitions and counter affidavits on stay applications. The respondents raised various legal objections that the petitions are not maintainable as the same have been filed without giving grievance notices to the respondents, which is prerequisite condition for assuming the jurisdiction by the National Industrial Relations Commission. The trade union of which, the petitioners claim to be members is provisionally registered trade union and not industry-wise trade union, as such the petitions filed before the NIRC are not maintainable. It is right of the respondents to award promotion or re- designate their employees being term and condition of service as such it does not amount to unfair labour practice. The NIRC (P&F) Regulations, 1973, were framed under the IRO, 1969 and the same have not been saved in terms of section 80(2)(b) of the IRO, 2002, as such the said Regulations stand repealed and are no more on the Statute Book. The Commission, therefore, is not empowered to grant/pass any ad interim orders in terms of Regulation 32. That no validly raised industrial dispute is pending, as such no interim relief can be granted. For the same cause of action, the petitioners previously, had filed petitions bearing Nos.4A(136) of 2004-K, 4A(138) of 2004-K, 4A(137) of 2004-K., 4A(146) of 2004-K and 4A(140) of 2004-K., which were dismissed and wilfully and deliberately to nullify the effect of the said order of the Commission passed in the said petitions, these petitions have been filed. On facts the respondents stated that the petitioners have been promoted as Guest Service Officers and not only re-designated as claimed by them. After promotion as Guest Service Officers, the petitioners are working at the Reception, which includes now one window operation of check in, check out, cashiering with responsibility for 'extending courtesy to the customers and ensure that the customers are extended cooperation and facilitated. The previously filed petitions being not maintainable were dismissed by common order, dated 20-1-2004. It is submitted that the petitioners have been promoted as Guest Service Officers vide letter, dated 24-1-2004, stating therein clearly that there has been job combination and pursuant to the said job combination, the petitioners were being promoted. It is...Submitted that in previous petitions the respondents had filed statements, dated 5-1-2004 along with copy of memorandum of Job Combination, dated 31-12-2003 (Copy of the same filed with reply statements as Annexure "R/2") categorically stating therein that, the petitioners pursuant to the training and promotion as Guest Service Officers will be given special increments ranging between 15 to 25% depending upon merits, education, experience and performance. The respondents denied that after promotion, the petitioners continued to have status of workmen. It is denied that pursuant to promotion, the petitioners are performing same nature of duties as workmen. It is submitted that the petitioners on promotion as Guest Service Officers had to undergo three months training. After commencement of the training it transpired that it was a highly technical and professional job, which required further training as such the training period was extended, which was completed in July, 2004. The petitioners were then called and offered letter, dated 23-8- 2004 for upward revision of salary, but they verbally refused to accept the same. The petitioners were throughout called upon to accept the same, but they refused. Subsequently another reminder dated 4-1-2005. In this regard was issued to petitioners. Simultaneously the Account Pay Roll .Section was intimated to give them their arrears along with copy of cheque credited in the Bank accounts of the petitioners. The respondents denied that the petitioners are active members of Pearl Continental Hotel Karachi Workers Union and also denied the status of the said union as CBA. It is submitted that due to violation of provisions of IRO, 1969 and the rules framed there-under the process of cancellation of the registration of the said union is sub judice before the Honourable High Court of Sindh. It is denied that the respondents have at any time or at any occasion called the petitioners and threatened them of dire consequences, including dismissal or termination from service. The respondents denied to have tried or formed any pocket union and to have put pressure on any of the petitioners to disassociate from their trade union and to join so-called pocket union. It is submitted that after promotion, the petitioners ceased to be the workmen, as such there is no any occasion to call the petitioners to ask them to join so-called pocket union. It is specifically denied that on 14-12-2004, the Acting H.R. Manager had called the petitioners and had given them 15 days time to accept the suggestion to disassociate from CBA union and to join so- called pocket union, failing which they shall face dismissal or termination from service. It is submitted that after dismissal of the petitions, which were previously tiled by the petitioners, there was no prohibitory order or legal bar against the respondents to remove or terminate any of the petitioners, but since it had never been the intention of the respondents to remove/terminate the petitioners, as such no action to this effect was taken by the respondents. It is submitted that it was decided by the Corporate Head Office, Hashoo Group that in both Marriott and Pearl Continental Hotels throughout Pakistan it is a requirement of introduction of job combination of Reception and Front Office Cashier Functions in order to facilitate the guests 'at the time of check in and check out at the Reception Counter. This concept is being currently followed by almost all international hotel chains as well as local hotels in Asia and Middle East. The management of Hashoo Group of Hotels firstly introduced the same in Pearl Continental Hotel, Bhurban Pearl Continental Hotel, Lahore on trial basis and after getting positive and encouraging feed back from both these hotels, under Hashoo Group of Hotels Management decided to implement it at all Hashoo Group of Hotels under a phased programme so that it becomes fully operational latest by 1st January, 2004. This was communicated in terms of Memorandum, dated 5-7-2003. This job combination of Reception and Front Office Cashiering functions facilitated and improved check in balance and the same is neither mala fide on the part of the respondents nor is detrimental to the interests of the petitioners. The respondents neither have threatened nor they intend to threat the petitioners of their dismissal, termination or retirement from service.
5. The petitioners filed their affidavit-in-rejoinder.
6. The respondents on 23-8-2005 filed statement along with copy of notice and application under section 46 of the IRO, 2002 filed by the petitioners before the Fifth Sindh Labour Court, Karachi, copies whereof were delivered to advocate for the petitioners.
7. I have heard arguments of Ch. Latif Saghar, learned advocate for the petitioners and Mr. Faisal Mahmood Ghani, learned advocate for the respondents.
8. Ch. Latif Saghar, learned advocate for the petitioners has contended that the petitioners are working as Front Office Cashiers in the respondents establishment. The respondents in 2004 proposed to promote all the Front Office Cashiers as Guest Service Officers. The petitioners, therefore, filed their 'individual petitions bearing Nos.4A(136) of 2006-K, 4A(138) of 2004-K, 4A(137) of 2004-K, 4A(146) of 2004-K, and 4A(140) of 2004-K, before this Bench of Commission, which were dismissed by common order, dated 20-1-2004 with the observation that by re-designating the petitioners as Guest Service Officers they will not become officers to be deprived of their trade union activities. It is submitted that apprehension of the petitioners proved to be true when they were given pay slips as Guest Service Officers in December, 2004, which did not include their contribution of the union. Even after issuance of letters, dated 24-1-2004, the petitioners had been receiving all the benefits of the unionized workers. The petitioners are members of Pearl Continental Hotel Karachi Workers Union, which is CBA. It is submitted that letters produced by the respondents -are back-dated and require evidence to be recorded to prove whether the petitioners have received the letters or. Not. It is submitted that the respondents are taking same duties from the petitioners, which they were already performing that of workmen and only re-designation will not take out the petitioners from the said category. It is submitted that without recording evidence, it cannot be determined as to what is nature of the duty of the petitioners. It is submitted that the petitioners have filed the grievance petitions before the Labour Court No,5., Karachi, regarding their grievance under section 46 of the IRO, 2002 to treat them as workmen, as such are entitled to monetary benefits under the settlement.
9. Mr. Faisal Mahmood Ghani, learned advocate for the respondents has contended that the respondents have introduced one window operation by way of, job combination of Reception and Front Office Cashier functions in order to facilitate the customers/guests at the time of check in and check out at the Reception Counter to deal with one person rather than to deal with several persons. This system has been firstly introduced in Pearl Continental Hotel Bhurban and Pearl Continental Hotel, Lahore and also in Marriott Hotel and has proved successful.: It is contended that the petitioners have neither been terminated nor dismissed from service; but they have been promoted with financial benefits. The previous petitions filed by the petitioners were dismissed by this Bench of Commission vide order, dated 20-1-2004. The respondents, by introducing the job combination of Reception and Front Office Cashier Functions at the Reception Counter and promoting the petitioners as Guest Service Officers have not committed any act of unfair labour practice: In previous petitions also the petitioners could not prove the case of unfair labour practice against the respondents, as such the petitions were dismissed. The respondents after dismissal of the previous petitions of the petitioners, neither dismissed nor terminated any of the petitioners, but started giving training to them so as to accomplish their new assignment. The period of training of the petitioners was extended, when the respondents felt that the petitioners require more training and after they completed their training, the respondents issued them promotion letters, which they refused, as such the same were sent to them by post. He has submitted that in promoting the petitioners, the respondents have not committed any act of unfair labour practice. The jurisdiction of National Industrial Relations Commission is restricted only to the cases of unfair labour practice.
Neither the petitioners have established prima facie case of unfair labour practice dor other ingredients, i,e, balance of convenience or irreparable loss are in favour of the petitioners to grant them interim relief. It is contended that the petitioners have served grievance notices on the respondents and have filed petitions under section 46 of the IRO, 2002 before the Labour Court No,5, Karachi, which have been filed along with statement by the respondents. It is also submitted that theprevious petitions, having been dismissed as not maintainable, the present petitions for the same'cause of action are barred by res judicata. In support of his contentions Mr. Faisal Mahmood Ghani, learned advocate for the petitioners has relied upon PLD 1988 SC 53, 1988 PLC 923, 1991 PLC 193, Appeal No,12(12) of 1999, 2002 TD (Lab.) 341, Appeal No,12(24) of 2001, 2003 PLC 52, 1997 PLC 246, 1993 PLC 168, 1994 PLC 46, Appeal No,12(72) of 98, Appeal No,12(133) of 92, 2000 SCMR 1172, 2002 PLC 59, PLD 2001 Lah 194 and Case No,4A(97) of 2003-K.
10. I have considered arguments of Ch. Latif Saghar, learned advocate for the petitioners and Mr. Faisal Mahmood Ghani, learned advocate for the respondents and have gone through the petitions; accompanied applications under Regulation 32(2)(c) of NIRC (P&F) Regulations, 1973 reply statements and counter affidavits filed by the respondents and affidavits-in-rejoinder filed by the petitioners.
11. Admittedly the petitioners are not office-bearers of the Pearl Continental Hotel Karachi Workers Union, CBA. They are only members of the said union. The petitioners on apprehension of their promotion as Guest Service Officers had filed petitions bearing Nos.4A(136) of 2004-K, 4A(138) of 2004-K, 4A(137) of 2004-K, 4A(146) of 2004-K and 4A(140) of 2004-K, which were dismissed as not maintainable by common order dated 20-1-2004 by this Bench of Commission. However, regarding the observations in the said order, dated 20-1-2004 that the petitioners on their promotion if will be assigned manual and clerical work, they will continue to be worker and consequently can do the trade union activities, as merely giving a designation of officer without raise in their salaries and without assigning them duties of officer, they will not become officer to be deprived of union activities, it appears that the petitioners in their petitions have not stated any specific instance of discrimination or victimization by the respondents on account of their trade union activities. According to the respondents they have introduced one widow operation by job combination of Reception and Front Office Cashier Functions and have promoted the petitioners as Guest Service Officers, as such the petitioners, are ousted from purview of workmen. Such combination of job has also been implemented in Pearl Continental Hotel Bhurban and Pearl Continental Hotel, Lahore, therefore, the same is being done by the respondents generally in all their Hotels situated in Pakistan, as such it cannot be said that the respondents are discriminating the petitioners in respect of their terms of employment.
12. Moreover the petitioners after filing the petitions have filed grievance applications before the Labour Court No,5, Karachi with prayer to direct the respondents to treat the petitioners as workmen/ unionized staff and enforce the right guaranteed and secured to the petitioners as workmen/worker and to release the financial benefits w,e,f, January, 2005 onward with arrears by setting aside letter/memo, dated 4-1-2005 and more or less the same prayer is made in the above-said petitions to ' direct the respondents not to disturb/change the status/position of the petitioners as unionized staff with further prayer to restrain the respondents from dismissing, discharging, removing, terminating, retiring or any other act which affected the terms and conditions of petitioners. Previously filed petitions were dismissed by this Bench of Commission by common order, dated 20-1-2004 on the ground that the petitioners could not make out a case of unfair labour practice, as such the same were not maintainable and in the present petitions except the allegation that the petitioners were called on 14-12-2004 by Acting HRM to consider the suggestion of the management, to disassociate from CBA union and to join pocked union, no other specific instance has been mentioned so as to establish whether the petitioners were or are likely to be victimized by the respondents on account of their trade union activities, so as to constitute unfair labour practice.
13. The jurisdiction of National Industrial Relations Commission is confined to the cases, where there is likelihood of commission of acts of unfair labour practice and the Commission is not conferred with the general jurisdiction to entertain all kinds of grievance petitions even though they may not be relatable to unfair labour practices. (Reference is made to case of Iftikhar Ahmad and others v.
President National Bank of Pakistan and others reported in PLD 1988 SC 53 at page-66). For any reasons other than unfair labour practice, the grievances are to be entertained and determined by the Labour Court, which can also determine whether the petitioners after their promotion as Guest Service Officers, still continue to perform any manual or clerical work, and will have status of workmen irrespective of their promotion as Guest Service Officers. Since subsequent to filing of the present petitions, the petitioners have filed petitions under section 46 of the IRO, 2002 before the Labour Court No,5, Karachi, it shall be futile exercise to proceed further in these petitions when from these petitions no ingredient or element of unfair labour practice as enunciated under section 63 of the IRO, 2002 is made out.
' For the aforesaid reasons, the petitions filed by the above said petitioners are dismissed and interim prohibitory order, dated 7-1-2005 passed by this Bench of Commission is hereby recalled.
' Announced in open Court.