' GHULAM NAUMAN SHAIKH (MEMBER).--- All the above mentioned three petitions are being disposed of by this common order as the facts and law involved in all the three petitions are same.
2. The above petitions under section 49(4)(e) read with section 63(1)(a)(b)(c)(d)(e)(f) and (i) of the I.R.O., 2002 and Regulation 32(2)(c) of N.I.R.C. (P&F) Regulations, 1973 along with applications under Regulation 32(2)(c) of N.I.R.C. (P&F) Regulations, 1973 supported by affidavits, have been filed by the petitioners named in their respective petitions against the respondents.
3. The facts of the case as stated by the petitioners in their respective petitions are that they are employed as permanent workmen in the respondents-Establishment. The petitioners in petitions bearing No,4A(32) of 2005-K and No,4A(38) of 2005-K, are employed since more than 7 years and the petitioners in Petition bearing No,4A(45) of 2005-K are employed since more than 1 to 3 years. It is alleged that the respondents do not issue appointment letters, service cards, salary/wage., slips, leave pass book and other documents required under different laws to their workers. There is already another registered trade union in the respondents-Establishment, but the respondents did not permit the petitioners and other workers to join that registered trade union. Therefore, the petitioners in Petition bearing No,4A(32) of 2005-K and Petition bearing No,4A(38) of 2005-K formed a trade union in the name and style of Helex Pharma (Pvt.) Ltd. Workers Union and submitted an application dated 7-3-2005 for its registration to the Joint Director Labour/Registrar of Trade Unions (West Division), Government of Sindh, Karachi and sent such intimation to the respondents through notice as required under section 10 of the I.R.O., 2002 on 7-3-2005. It is submitted that Muhammad Nasir, petitioner No,1 in Petition bearing No,4A(32) of 2005-K was nominated as General Secretary, Farhad Ali, petitioner No,2 as its Vice-President, Muhammad Sohail, petitioner No,3 as its Joint Secretary and Syed Abdul Muqeet, petitioner No,4 as its Finance Secretary. It is submitted that on 10-3-2005 the petitioners in Petition bearing No,4A(45) of 2005-K filled membership forms and joined the said trade union. It is alleged that the respondents are against the healthy trade union activities and they threatened the workers of their termination from service, as such the petitioners apprehend their termination during the pendency of application for registration of trade union. It is prayed to restrain the respondents not to dismiss, discharge, remove, retrench, terminate or transfer the office-bearers and bona fide members of the newly- formed trade union till the pendency of registration of the trade union and pending final disposal of the petitions.
4. On presentation of the above said petitions interim prohibitory orders were passed on 8-3-2005, 14-3-2005 and 24-3-2005 respectively, thereby the respondents were restrained from dismissing, discharging, retrenching, terminating or transferring the petitioners till the next date of hearing, which have been extended and continued from date to date.
5. The respondents filed parawise comments with preliminary legal objections on main petitions and counter-affidavit on applications under Regulation 32(2)(c) of N.I.R.C. (P&F) Regulations, 1973.
The legal objections raised are that the petitioners are not employed with the respondents, as such there is no relationship between them of employer and employee, therefore, the petitioners have no locus standi to file the present petitions, which are not maintainable. On facts of the case it is submitted that the petitioners in fact are engaged and employed by Messrs Siddiqui Contracting Company, to whom the respondents have given contract on 1-4-1999 when the name of the respondents-Company was Messrs Hakimsons Chemical Industries (Pvt..) Limited, which later on during the year 2002 was changed as Messrs Helix Pharma (Pvt.) Limited and the said contract has been extended by consent from time to time. It is denied that the petitioners are either employed by the respondents or they are on the roll of the respondent-Establishment. It is denied that the respondents were not issuing appointment letters and identity cards to their workers. With parawise comments the respondents have filed nine letters of appointment of the workers from 1982 till 2004 as Annexure "R/8" to "R/16", two identity cards as Amiexure "R/17" and "R/18". List of all the permanent workers (49 in number) employed by the respondents in their various departments as Annexure "R/19" and three copies of the attendance sheets for the months of January to March, 2005 in respect of permanent workers as Annexure "R/20" to "R/22" to substantiate their contention that the petitioners are neither their employees nor they are on the roll of the respondents and that the respondents have been issuing appointment letters and identity cards to the workers, who are appointed by them and were on their roll. It is submitted that since the petitioners are not employed by the respondents, but are engaged and employed by Messrs Siddiqui Contracting Company, as such the trade union formed by them, was in utter disregard and clear contravention of section 6(1)(d) and section 6(2)(a) of the I.R.O., 2002. And is illegally constituted body. It is submitted that the petitioners have deliberately concealed this fact that they were employed by Messrs Siddiqui Contracting Company. The respondents have apprised this fact to the Joint Director Labour/Registrar of Trade Unions, Sindh, Karachi through their letters dated 17-3-2005 and 22-3-2005. It is submitted that the petitioners have not mentioned any specific act of their victimization on the part of the respondents, as such the provisions of section 63 of t.R.O., 2002 are not attracted to the present petitions, which being not maintainable are liable to be dismissed.
6. Mr. M. Siddique Malik, labour representative for the petitioners also filed applications under Order I, rule 10, read with section 151, C.P.C. Supported by affidavit to join Helix Pharma (Pvt.) Limited Employees Union (CBA) as respondent being necessary party. Notified Factory Manager of the respondents filed objections with counter-affidavit on these applications.
7. I have heard arguments of Mr. M. Siddique Malik, learned labour representative for the petitioners and Mr. Mahboob Rizvi, learned Advocate for the respondents.
8. Mr. M. Siddique Malik, learned labour representative for the petitioners has contended that these three petitions are identical and have been filed by the petitioners with prayer to restrain the respondents from terminating the services of the petitioners pending their application for registration of the trade union. Interim prohibitory orders were passed in these three petitions on accompanied applications under Regulation 32(2)(c) of N.I.R.C. (P&F) Regulations, 1973 supported by affidavits filed by the petitioners on their respective dates of presentation. The respondents submitted their reply raising therein preliminary legal objections that the petitioners are not employees of the respondents, but they are employees of Messrs Siddiqui Contracting Company and such agreement was executed between the respondents-Company and Messrs Siddiqui Contracting Company on 1-4-1999. It is submitted that this agreement is between Messrs Hakimsons Chemical Industries (Pvt.) Limited and Messrs Siddiqui Contracting Company and is not between Helix Pharma (Pvt.) Limited and Messrs Siddiqui Contracting Company, as such this agreement has no legal effect. It is submitted that the agreement was challenged before the Third Sindh Labour Court, Karachi, which by order, dated 31-7-2000 filed as Annexure "A/1" had declared that agreement had come from the pocket of the respondents and not from the contractor, as such it was false and forged. This order of Sindh Labour .Court No,3, Karachi was not challenged. It is submitted that the petitioners are employees of the respondents and Process Control Sheets (Packaging) has been produced with affidavit-in-rejoinders as Annexure "A/18" to "A/25", overtime sheets as Annexure "A/26" to "A/28", Equiprnent/Area Clearance Check List of Packing as Annexure "A/33" to A/37". It is submitted that the petitioners during their employment have received letters from their relatives at the address of the respondents, which have been filed with affidavits-in- rejoinder as Annexure "A/38" to "A/56". The petitioners with their affidavits-in-rejoinder have also produced Production Programme for the month of June, 2005 as Annexure "A/32" showing that the respondents-Company will produce 14,13,594 units, wherein the name of the contractor is not mentioned. The latest Production Programme for the month of August, 2005 also has been produced during the course of arguments. It is submitted that the question whether the petitioners are employees of Messrs Helix Pharma (Pvt.) Limited or of Messrs Siddiqui Contracting Company is mixed question of law and facts, which can be decided after the evidence is recorded. In support of his contention Mr. M. Siddique Malik, learned labour representative has placed his reliance on 1997 PLC 628 (Labour Appellate Tribunal Sindh), 2004 PLC 348 (High Court of Sindh (Karachi)), judgment, dated 16-3-2005 of Honourable High Court of Sindh at Karachi in C.P. No,D-754 of 1996 (unreported), 1997 PLC 746 (Karachi High Court), 1998 PLC 122 (Karachi High Court) and 1999 SCM R
234. On applications under Order I, rule 10, C.P.C. Filed by labour representative for the petitioners to join Helix Pharma (Pvt.) Limited Employees Union (CBA) through its President/General Secretary due to disclosure of the respondents that the petitioners are in the employment of the so-called contractor, it is contended by the learned labour representative for the petitioners that CBA union is necessary party to effectively and completely adjudicate upon and settle all the questions involved in the petitions. In support of his contention the learned labour representative for the petitioners has placed his reliance on PLD 1975 SC 463 and PLD 1982 SC 46.
9. Mr. Mahboob Rizvi, learned Advocate for the respondents had contended that the petitioners have not filed the present petitions that whether they are employed by the respondents or by the contractor, but they have filed the present petitions with prayer that during the pendency of their application for registration of the trade union, they may not be dismissed or terminated from service. It is submitted that Helix Pharma (Pvt.) Ltd. Workers Union has been registered by the Registrar of Trade Union vide certificate of registration dated 23-4-2005, which the respondents'
Notified Factory Manager has filed with the objections on the applications under Order I, rule 10 read with section 151, C.P.C. Filed by the labour representative for the petitioners. This fact has been concealed and deliberately not brought by the petitioners on record. Since the petitions have been filed by the petitioners that they may not be dismissed or terminated from service during the pendency of their application for registration of the trade union, as such after the trade union has been registered, whether correctly or wrongly, legally or illegally, the relief prayed by the petitioner's is no more subsisting and available to the petitioners, as such the petitions have become infructuous and liable to be dismissed. It is contended that agreement was executed on 1-4-1999 between Messrs Hakimsons Chemical Industries (Pvt.) Limited and Messrs Siddiqui Contracting Company, which has been filed with parawise comments as Annexure "R/1". It was renewed by Messrs Hakimsons Chemical Industries (Pvt.) Limited vide Annexure "R/2", "R/3" and "R/4". In July, 2002 name of Messrs Hakimsons Chemical Industries (Pvt.) Limited was changed to Helix Pharama (Pvt.) Limited, as such agreement was renewed by Helix Pharma (Pvt.) Limited vide Annexure "R/5", "R/6" and "R/7". The latter is for the period from 1-4-2005 to el-3-2006. It is submitted that by change of name of the company the agreement will not loose its validity, as such it is a valid agreement now subsisting between Messrs Helix Pharma (Pvt ) Limited and Messrs Siddiqui Contracting Company. The learned Advocate for the respondents has contended that the allegations of the petitioners that the respondents are not issuing appointment letters and identity cards 'to their workers are false and baseless as the respondents have issued appointment letters to their workers, which have been filed as Annexure "R/8" to R/16", so also identity cards of two workers have been filed as Annexure "R/17" to "R/18" as example. The learned Advocate for the respondents has contended that if the petitioners claim that they were employed by the respondents, but were not issued appointment letters and identity cards, as to why the petitioners did not make any complaint either to the respondents or to the labour department that the respondents had not issued them appointment letters and identity cards. It is submitted that there are 49 permanent workers engaged by the respondents, the list whereof the respondents have filed as Annexure "R/19" with the parawise comments, so also the respondents have filed copy of attendance register in respect of their workers for the months of January to March, 2005 as Annexure "R/20" to "R/22". The learned Advocate for the respondents has contended that the petitioners have also not produced any documents to show that they were paid wages by the respondents. It is contended that the documents filed as Annexure "A/9" to "A/16" with affidavit-in- rejoinder by the petitioners, if show the name of any of the petitioners, then also these documents do not substantiate the claim of the petitioners that they are employed by the respondents. It is submitted by the learned Advocate for the respondents that the petitioners were engaged and employed by Messrs Siddiqui Contracting Company and obviously they were engaged and employed by the contractor for the purpose to do the work, assigned to the contractor under the agreement in the respondents' factory, as such the petitioners were working in the respondents' factory on the work given on the contract by the respondents and under the direct control of the contractor. Their working in the respondents' factory would not mean that they are employed by the respondents. It is submitted that Annexure "A/32" produced by the petitioners does not bear stamp of the respondents-Company and even it is not material document to show that the petitioners are employees of the respondents. It is submitted that quality control and check always remain with the company, as such these documents, may be bearing signatures of the officers of the respondents, but they do not make or show that the petitioners are employees of the respondents. So also the documents Annexure "A/33" to "A/37" and copies of the envelopes showing the address of the respondents filed as Annexure "A/38" to "A/56" with affidavits-in- rejoinder, as the petitioners working in the respondents' factory under the employment and control of the contractor, would have given their postal address of the respondents-Company. Learned Advocate for the respondents has submitted that decisions cited by the labour representative for the petitioners are not applicable to the facts of the present case, as in the present case, the petitioners have no relationship of employment with the respondents, but they are employees of Messrs Siddiqui Contracting Company, who was given work on contract by the respondents under the agreement executed on 1-4-1999 extended from time to time, the last one dated 18-3-2005 for the period from 1-4-2005 to 31-3-2006 filed as Annexure "R/7" with the parawise comments. It is submitted that the respondents had written letter dated 17-6-2005 to the Registrar of Trade Unions to file a complaint before the Labour Court for cancellation of registration of Helix Pharma (Pvt.) Ltd.
Workers Union, but the Registrar of Trade Unions, Sindh, Karachi did not take any action, as such the respondents have filed Constitutional petition before the Honourable High Court of Sindh, challenging the order of the Registrar of Trade Unions, registering the Helix Pharma (Pvt.) Ltd.
Workers Union, which is pending. The learned Advocate for the respondents has contended that since Helix Pharma (Pvt.) Ltd. Workers Union has been registered by the Registrar of Trade Unions, Sindh, Karachi, as such the prayer of the petitioners that they may not be dismissed or terminated from service during pendency of application for registration of the trade union has become redundant and there is no prayer of the petitioners in their petitions that they may be declared as employees of the respondents, as such the petitions filed by the petitioners are not maintainable and liable to be dismissed. It is submitted that for declaration that the petitioners are workers of the respondents-Company, they can file their petitions before the proper forum: On application under Order I, rule 10 read with section 151, C.P.C. Filed by labour representative for the petitioners to join Helix Pharma (Pvt.) Ltd. Employees Union (CBA) as respondents, learned Advocate for the respondents has contended that Helix Pharma (Pvt.) Ltd. Employees Union is neither necessary nor proper party to be joined as respondent in the present petitions, as there are no such circumstances and situation that question involved in the present petitions cannot be effectively and completely adjudicated by this Bench of Commission in absence of Helix Pharma (Pvt.) Ltd.
Employees Union. Moreover, the main petitions after registration of Helix Pharma (Pvt.) Ltd. Workers Union have themselves become infructuous, as such applications under Order I, rule 10 read with section 151, C.P.C. Filed by the labour representative for the petitioners be dismissed.
10. I have considered the arguments advanced by Mr. M. Siddique Malik, learned labour representative for the petitioners and Mr: Mahboob Rizvi, learned Advocate for the respondents and have gone through the petitions, applications under Regulation 32(2)(c) of N.I.R.C. (P&F)
Regulations, 1973, comments, with preliminary legal objections, counter-affidavit filed by the respondents, affidavits-in-rejoinder filed by the petitioners, applications under Order I, rule 10 read with section 151, C.P.C. Supported by affidavits filed by labour representative for the petitioners, objections supported by counter-affidavit filed by Notified Factory Manager of the respondents on applications under Order I, rule 10 read with section 151, C.P.C., documents filed by the parties and also the case-law cited.
11. In the present petitions, the petitioners have not mentioned any specific instance of their victimization on account of their trade union activities by the respondents. In the first Petition bearing No,4A(32) of 2005-K filed by Muhammad Nasir, petitioner No,1 nominated as General Secretary, Farhad Ali, petitioner No,2 nominated as Vice-President, Muhammad Sohail, petitioner No,3 nominated as Joint Secretary and Syed Abdul Muqeet, petitioner No,4, nominated as Finance Secretary, they have stated that due to formation of trade union and moving application for its registration to the Registrar of Trade Unions, Sindh, Karachi and such intimation to the respondents, they apprehend that they will be victimized and may be discharged, dismissed or otherwise punished, so also other members of the union during pendency of registration of the trade union.
Except showing their apprehension of dismissal from service, the petitioners have not even alleged that any of the officers of the respondents on any date or time, had called them at any place and issued them threats of dismissal or termination from service. Mere apprehension will not make out a case of unfair labour practice.
12. In Petition bearing No,4A(38) of 2005-K the petitioners in para.3 of the petition have alleged that as soon as the respondents received the notice of case No,4A(32) of 2005-K, they started intimidation, coercion, pressure, threatening and confinement of the petitioners and are threatening for dire consequences and also pressurizing to resign from service and from membership of the union. In para.6 of the petition the petitioners have stated that they apprehend that they will be victimized, dismissed, discharged, removed or otherwise punished due to their trade union activities and formation of trade union. In this petition the petitioners have not shown as to on what date, time and place they were intimidated, coerced, prssurized or threatened and as to what is the name of the officer of the respondents-Company, who was involved in such alleged threats, intimidation and coercion. These allegations are general, bald and vague and not specific, as such do not constitute unfair labOur practice.
13. In Petition bearing No,4A(45) of 2005-K in its para.3 the petitioners have stated that the application for registration of the trade union was made on 8-3-2005 to the Registrar of Trade Unions, Sindh Karachi and they had joined the trade union by filing its membership forms on 10-3- 2005. As soon as the respondents received the notices of Petitions Nos.4A(32) of 2005-K and No,4A(38) of 2005-K, the management started harassment, intimidation, coercion, pressure and threatening of dire consequences to the petitioners to resign from their employment and also from membership of the newly formed trade union. In para.4 of the petition the petitioners stated that hey apprehend victimization and termination due to joining the newly-formed trade union of workers. The petitioners in their Petition bearing No,4A(45) of 2005-K have not stated as to on what date, time and place they were coerced, pressurized or threatened by the responde its. They have also not given name of officer of the respondents-Company, who had allegedly issued them threats to resign from the employment as well as from the membership of the trade union. Mere general and bald allegations levelled by the petitioners, therefore, will not constitute unfair labour practice.
14. The petitioners have claimed to be employees of the respondents since about 1 to 7 years. They have not stated the date, month anu year of their employment either in th, petitions or in affidavits- in-rejoinder. They have also not shown their designation or department, where they were working.
The petitioners have alleged that the respondents were not issuing appointment letters and identity cards to their workers including the petitioners, but the respondents with parawise comments have filed nine appointment letters as Annexures "R/8" to "R/16" from the year 1982 to 2004 and also two identity cards as Annexurc "R/17" to "R/18", which clearly negate the allegation of the petitioners. Neither in the petitions nor in their affidavits-in-rejoinder, the petitioners have made any satisfactory clarification as to why they accepted their employment without written appointment letters and as to why they continued with their employment without asking the respondents to supply them the requisite documents of their employment. The petitioners have not made any application at any time to the respondents to supply them the documents of their employment or even verbally asked the respondents to supply the documents to them. Had the petitioners done so, they would have certainly mentioned so in their petitions. Admittedly the petitioners also have not made any complaint to the Labour Department that the respondents had not issued appointment letters and other documents relating to their employment, thereby the respondents had violated the provisions of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. The petitioners also have not produced any payment vouchers to show that they were being paid their wages by the respondents. The petitioners have also not produced attendance cards or attendance register to show that they were on the roll of the respondents.
Even the petitioners have not produced copy of their applications for appointment, which they would have submitted to the respondents seeking for their employment. They have also not produced copy of any of leave applications submitted by them to the respondents in case they were working in the respondents factory as their employees. In absence of any such above stated documents, on mere oral assertions of the petitioners, they cannot be said to have prima facie established their employment with the respondents to maintain their petitions before this Commission.
15. Under section 49(4)(e) of the I.R.O., 2002, the National Industrial Relations Commission can deal with the cases of unfair labour practice specified under section 63 of the I.R.O., 2002 on the part of the employer, which means that the workman, who files the petition would show that he is employed by the said employer, against whom he alleges act of unfair labour practice. It is, therefore, for the petitioners to prima facie establish their claim of employment with the respondents by producing some cogent evidence, obviously by way of some documents to show that they were and are employees of the respondents and also substantially show specific instances of victimization on account of their trade union activities by the respondents, so as to maintain their petitions before this Commission. The petitioners have to base their petitions on E some established relationship with the respondents and on specific instances of victimization on account of their trade union activities. In absence, of any such relationship and specific instances of victimization on account of trade union activities, they cannot succeed on any weakness of the respondents. On examining the contentions of both the parties, it appears that there is no element of unfair labour practice falling under section 63 of the I.R.O., 2002 in the petitions, which is the pre- requisite for exercising the jurisdiction by National Industrial Relations Commission to entertain and deal with the petition under section 49(4)(e) of the I.R.O., 2002.
16. With regards to the contention of the learned labour representative for the petitioners that the agreement filed by the respondents with parawise comments as Annexure "R/1" since has come from the custody of the respondents may not be believed, it shall be pertinent to point out that it was executed between Messrs Hakimsons Chemical Industries (Pvt.) Limited, name whereof was changed as Helix Pharma (Pvt.) Limited in July, 2002 with Messrs Siddiqui Contracting Company, as such the respondents being one of the party in the agreement, shall obviously possess the same and its validity on mere this score cannot be doubted.
17. Admittedly there is no industrial dispute pending. Grant of interim relief against any of action mentioned in section 63(1)(d) of the I.R.O., 2002 is subject to pendency of industrial dispute as laid down under proviso of section 49(4)(e) of I.R.O., 2002, as such no interim relief can be granted. Even otherwise grant of any such interim relief when the petitioners have no prima facie proof that they have been employed by the respondents, will amount to induct them in the employment of the respondents-Establishment, which will not be justified and proper. There also appears no any specific instance of unfair labour practice on the part of respondents.
18. Moreover Helix Pharma (Pvt.) Ltd. Workers Union, of which the petitioners claim to be office- bearers and members, has been registered by the Registrar of Trade Unions, Sindh Karachi vide registration certificate dated 23-4-2005, which has been challenged by the respondents in constitutional petition before the Honourable High Court of Sindh at Karachi and it is pending. In these petitions the petitioners basically seek protection during pendency of the application for registration of their trade union, and after registration of their trade union, these petitions have become infructuous. Further proceedings in the petitions, therefore, will be a futile exercise, moreso in view of the fact that prima facie no element of unfair labour practice is also spelt out from the petitions.
19. Regarding applications under Order I, rule 10 read with section 151, C.P.C. Filed by labour representatives for the petitioners to implead Helix Pharma (Pvt.) Ltd. Employees Union (CBA) as respondent, being necessary party so as to effectively and completely adjudicate upon the matter, I am of the view that Helix Pharma (Pvt.) Ltd. Employees Union (CBA) is neither necessary nor a proper party to be joined as respondent in these petitions, as the questions involved in the present petitions can be adjudicated effectively and completely in absence of Helix Pharma (Pvt.) Ltd.
Employees Union (CBA), and any order passed in these petitions will not certainly affect any of the right of the Helix Pharma (Pvt.) Ltd. Employees Union (CBA). These applications under Order I, rule 10 read with section 151, C.P.C., filed in all the petitions, therefore, stand dismissed.
' For the aforesaid reasons the petitions, being not maintainable before the National Industrial Relations Commission, are hereby dismissed and the interim prohibitory order, dated 8-3-2005, 14- 3-2005 and 24-3-2005 passed in abovesaid petitions are hereby recalled.
' Announced in open Court.