' GHULAM NAUMAN SHAIKH (MEMBER).--- This is petition under section 49(4)(e) of the I.R.O., 2002 along with application under Regulation 32(2)(c) of NIRC (P&F) Regulations, 1973 supported by, affidavit of Syed Qamar Abbas filed by the petitioner federation through its General Secretary against the respondents.
2. The facts of the case as stated in the petition are that the petitioner is registered as industrywise Federation with RITU, National Industrial Relations Commission, Islamabad and represents all the workers of the respondents Bank throughout Pakistan. The petitioner has resolved the disputes with the management of respondents through bilateral negotiations from time to time but now the respondents are avoiding to resolve the dispute of the workers malafidely. The respondents have filed several cases against the petitioner federation and its office-bearers so as to restrain the office-bearers and members of the petitioner federation from their trade union activities. =It is alleged that now the respondents have stopped the break time for lunch and prayer, medical facilities for parents, leave encashment and changed the rate of annual increment of the workers and thereby affected the existing working conditions of the workers. It is alleged that the respondents also have threatened the workers not to pursue for their previous existing facilities, otherwise they will be transferred, demoted, suspended, terminated or dismissed from the employment. The respondents, therefore, have deprived the workers from their available facilities, so as to crush their trade union activities, which are calculated to the acts of the unfair labour practice. It is, therefore, apprehended that the respondents will dismiss, transfer, suspend, demote or terminate the office-bearers and members of the petitioner federation at Karachi, Hyderabad, Lahore, Gujranwala, Faisalabad and Islamabad. It is prayed to restrain the respondents and persons connected with them from transferring, suspending, demoting, terminating or dismissing the members and office-bearers of the Federation from the employment and not to harass or pressurize or victimize them in their employment.
3. The respondents filed reply statement with preliminary legal objections regarding maintainability as well as have challenged the jurisdiction of National Industrial Relations Commission. It is alleged that the petitioner federation is an illegally constituted body and a complaint for cancellation of its registration has been filed before the Bench of NIRC exercising the powers of Labour Court. The petitioner is not certified as Collective Bargaining Agent, as such it cannot espouse the cause of individual workers. It is submitted that on same cause of action seeking a general relief a petition was filed as Case No,4A(152)/05-L before the Bench of Commission at Lahore, wherein initially the stay was granted. Then stay application was dismissed on 5-10-2005 and main petition was also then dismissed on 7-1-2006 for want of evidence. The present petition is, therefore, hit by res judicata. On merits the allegations contained in the petition regarding mala fides and threats are denied. The respondents have submitted that they have legally initiated the proceedings against the office-bearers before the National Industrial Relations Commission so as to prevent commission of unfair labour practice by them. It is submitted that no right guaranteed and secured to the workers, trade union or federation has been infringed so as to call for its enforcement. It is alleged that there are general and bald allegations and no specific instance of victimization constituting unfair labour practice, has been levelled in the petition, as such the petition is not maintainable. It is submitted that transfer, initiation of disciplinary proceedings and taking any action is contractual and legal right of the respondents and cannot be restrained under the garb of allegations of unfair labour practice.
4. Syed Qamar Abbas, General Secretary of the petitioner federation has filed affidavit-in-rejoinder.
5. I have heard arguments of Mr. M.A.K. Azmati, learned Advocate for the petitioner federation and Mr. Faisal Mahmood Ghani, Advocate for the respondents.
6. Mr. M.A.K. Azmati, learned Advocate for the petitioner has contended that the petitioner is registered as industrywise federation with National Industrial Relations Commission. The respondents have filed several cases against the office-bearers of petitioner federation and in a case filed by the respondents as Case No,4A(25)/2004-K, stay has been granted against the petitioner. It is submitted that under the garb of interim prohibitory order, the respondents are threatening and harassing the office-bearers and arbitrarily stopped break time for the lunch and prayer, medical facilities for parents, so also leave encashment and have changed other working conditions of the workers without issuing any notice. Apprehending commission of acts of unfair labour practice by the respondents, this petition has been filed. It is submitted that the respondents have disputed the status of the petitioner federation to represent the workers, which can be determined after the evidence is recorded. It is submitted that although the complaint has been filed by the Registrar Industrywise Trade Unions before Me Bench of NIRC exercising the powers of labour Court for cancellation of registration of petitioner federation, but no order of its cancellation has been passed by the labour Court, therefore, the petitioner can continue its functions.
7. Mr. Faisal Mahmood Ghani, learned Advocate for the respondents has contended that petitioner federation is not CBA, as such it cannot espouse the cause of individual workers. In support of his contention he has placed his reliance on order of Member of NIRC in the case of United Bank Employees Federation through Provincial Secretary and 15 others v. President, United Bank Limited and 4 others reported in 2004 TD (Labour) 239, wherein it is observed that a trade union unless it is CBA cannot file grievance petition in respect of individual grievance of a worker or even represent one or more workers in a joint petition. Reliance also is placed on PLD 1979 Karachi 473 and 1992 SCMR 36. It is contended that there is no industrial dispute pending, as such also interim relief cannot be granted, since it is barred under the proviso of clause (e) of subsection (4) of section 49 of the I.R.O., 2002. In support of this contention of Mr. Faisal Mahmood Ghani, learned Advocate for the respondents has referred to order, dated 29-8-2005 passed by this Bench of Commission in case bearing No,4A(32)/2005-K./24(41)/ 2005-K. Filed by Muhammad Nasir and others against Messrs Helix Pharma (Pvt.) Ltd. And upheld by Full Bench of NIRC. He has contended that in pursuance of the order passed by learned RITU a complaint has been filed before a Bench of Commission exercising the power of Labour Court for cancellation of the registration of petitioner federation. It is submitted that with same cause of action and same prayer a petition was filed by the petitioner federation before the Bench of NIRC at Lahore bearing No, 4A(152)12005-K. (U.B.L.
Employees Federation through its Chairman Muhammad Shabbir Chaudhry v. U.B.L. Through its President), wherein initially stay was granted, but the stay application then was rejected and even main petition, was dismissed for want of evidence. No appeal has been filed against the said order passed by the Member, NIRC, Lahore Bench, as such it has attained finality. The petition is hit by res judicata. In support of his contention he has placed his reliance on 2000 SCMR 1172. It is submitted that transfer and taking any disciplinary proceedings against the employee is a statutory right of employer, which cannot be taken away by making general allegations of unfair labour practice. It is submitted that the allegations are vague, general and bald and do not make out a case of unfair labour practice. In support of his contention he has relied upon order of this Bench of Commission, dated 7-4-2001 in case No,4A(25)/2001-K. Attaullah son of Abdul Razak and others v. Messrs Continental Biscuits Limited through its. Secretary/Occupier/Manager and others 2005 PLC 327.
8. I have considered arguments advanced by both the learned Advocates for the parties and 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, affidavit-in- rejoinder as well as other documents filed by the parties.
9. The petitioner is registered as industrywise federation with National Industrial Relations Commission. Last change of The office-bearers approved by the RITU vide order, dated 19-2-2004 has been tiled as Annexure "P. 1" with the petition. However so far no document has been filed by the petitioner federation that it has status of CBA which under clause (b) of subsection (13) of section 20 of the I.R.O., 2002 can represent all or any, of the workman in any proceedings. So far general allegations have been levelled in the petition against the respondents and no specific instance has been brought on record, as such it would require evidence of the petitioner federation to substantiate the allegation levelled by it against the respondents. Except the allegation in the petition no document has been produced by the petitioner as to what medical facilities and other working conditions of the workers have been stopped or curtailed by the respondents. Admittedly no charge-sheet or show-cause notice so far has been issued by the respondents against any office-bearer or member of the petitioner federation and their apprehension without any supporting circumstances, therefore, would not make out a prima facie case for grant of interim relief as prayed by the petitioner federation, which is also of general nature, thereby seeking protection to all the workers regarding their transfer, dismissal or termination.
10. Even otherwise proviso of clause (e) of subsection (4) of section 49 of the I.R.O., 2002 bars the grant of interim relief when there is no industrial dispute pending. Accordingly the application under Regulation 32(2)(c) of NIRC(P&F) Regulations, 1973 filed by the petitioner federation is dismissed. To come up on 31-3-2006 for filing affidavit-in-evidence by the petitioner.
' Announced in open Court.