Accompanied by stay application under Regulation 32(2) of NIRC (Procedure & Function)
Regulations, 1973 this petition has been filed under Section 33 of the Industrial Relations Ordinance, 2002 which reads as follows:- Section 33. Application to Labour Court: Any collective bargaining agent or any employer may apply to the Labour Court for the redressal of any grievance or enforcement of any right guaranteed or secured to it or him by or under any law or any award or settlement'.
2. Grievance leading to the filing of this petition is contended to have been caused by the advertisement of certain vacancies in the respondent establishment that appeared in the Daily Jang of 11.07.2007. It is stated that the respondent management earlier advertised vacancies as far back as in the year 2004 but the same were not filled on account of intervention of the Prime Minister who was persuaded by the resistance of the CBA. It is contended that the attempt of the management to make the direct recruitments as a consequence of the said advertisement is violation of the agreed terms with the CBA according to which respondent is contended to be under obligation to induct wards of the deceased/retired employees on priority basis. In this regard copy of the bilateral agreement that was arrived at between the parties is appended to the petition as "Annexure-J. It is also contended that even otherwise the advertisement is in violation of Rules and method of appointment as the percentage quota i,e, for appointment by promotion and appointment of direct recruitment is being ignored.
3. It has been argued by the learned Counsel for the petitioner union that appointment by promotion is right guaranteed and secured to the employees under the Rules besides the settled terms under the bilateral agreement between CBA and the management of OPF. By relying on the judgment passed by the Hon'able Chairman NIRC in Case No, 4A(8)/2003; Mazdoor Union Versus Neelum Glass Industries', it was argued by the learned Counsel for the petitioner union that CBA can espouse the cause of worker under Section 33 and NIRC within the meaning of Section 50(3)
(a) and Section 50(3)(b) of IRO, 2002 shall act as Labour Court for the purpose of Section 33 of the said Ordinance. The petition, as such, after preliminary hearing was admitted for regular hearing and the respondent management was directed not to finalize the recruitments in the meantime.
4. The petition and the stay application both were resisted by the respondent establishment in their reply statement and written arguments filed by the learned Law Officer of OPF who also orally argued the matter by raising following preliminary legal objections:- (a)That the petition before NIRC is not maintainable under Section 33 of IRO 2002 as NIRC is not Labour Court for the purpose of the said section and so it has no jurisdiction to entertain the instant petition.
(b)Section 50(3)(a) of IRO 2002 only gives power of Labour Court to NIRC with regard to unfair labour practice but does not vest in it the jurisdiction.
5. In reply to the facts/merit of the case the respondent establishment has given position of vacancies in detail contending that the same is in accordance with Rules and terms of agreements arrived at between the parties. The respondent has also provided justification for the posts advertised and has also given on account of various benefits provided to the employees of OPF.
6. During the course of proceedings it was agreed by both the learned Counsels that instead of going through the merit of the case this Bench should, in the first instance, determine the issue of jurisdiction and maintainability therefore, I accordingly shall not go into merits of the case for the determination of the petition/grievance of the petitioner, but confine myself to the determination of issue of maintainability and jurisdiction.
7. Both the learned Counsels have argued at length on both these issues. It was contended by the learned Counsel for the petitioner that the Bench of Commission is Labour Court within the meaning of Section 50(3) of IRO 2002 and so can entertain a petition for enforcement, or for redress of individual grievance in respect of any right guaranteed or secured to any employer or worker by or under any law or any award or settlement. It was further argued that a CBA under Section 20(13)(b) of IRO 2002 is entitled to represent all or any of the workmen in any proceeding. It was argued that as interpreted by the Hon'able Chairman NIRC in the Case titled as Mazdoor Union versus Neelum Glass Industries has held that the CBA can invoke Section 33 of IRO 2002 to espouse the cause of workers before NIRC.
8. The learned Law Officer of OPF on the other hand in addition to his contention as contained in the legal objection as stated in the above has further argued that the petitioner has no cause of action/grievance as per prayer, to approach NIRC because the agreement which has referred to in the petition as well as in the prayer has already expired. It was argued that the respondent had advertised the vacant posts, short listed the candidates, issued call letters for test and interviews as per procedure laid down and so the respondent has not violated the law. It is further argued that promotion is not right of individual, and therefore one can be promoted by taking into consideration the principle of seniority-cum-fitness. It is further argued that the Department/Management who can see fitness of individual is the best judge in the matter of appointment/ selection. It is argued that the plea of the petitioner that promotion is the right of workers is not correct. It is contended that under Section 33 and Section 49(4)(e) of IRO 2002, the CBA has no right to espouse the cause of workers and cannot approach NIRC for redress of individual grievances of workers. In this regard the learned Law Officer for the respondent establishment has relied on the case law: 2006 PLC 404 and 1992 SCM R 36.
Before I decide the issue of maintainability and jurisdiction I feel inclined to go through the law and the case law cited by both the learned counsels in support of their contentions. The learned Counsel for the petitioner has basically relied on the judgment of Hon' able Chairman NIRC in Case No, 4A(8)/2003 as already cited in the above. In this case which was filed by Mazdoor Union under Section 49(4)(e) of IRO 2002, the Hon'able Chairman has held that in Section 33 of the present Ordinance, the words for the redressal of any grievances" have been incorporated. It has been held that this demonstrates that CBA who is entitled under Section 20(13) to represent all or any workman in any proceeding have also been authorized under Section 33 to approach the Commission for redress of any grievance. It has been discussed in detail by the Hon'able Chairman that the word "any" connotes wide generality and excludes limitation or qualification. To me, the facts of this case are distinguishable from the one of the instant petition in that the former has invoked the jurisdiction of NIRC under Section 49(4)(e) on the allegation of unfair labour practice whereas the latter does not allege any unfair labour practice on the part of the respondent. I therefore hold that NIRC cannot act as Labour Court under Section 50(3)(a) of IRO 2002 in the absence of the allegation of unfair labour practice. At the same time I an also not willing to concede to the contention to the learned Law Officer that CBA under Section 33 and Section 49(4)
(e) of IRO 2002 has no right to espouse the cause of workers and cannot approach the NIRC for redressal of grievances of workers. The learned Law Officer in this regard has relied on the case law reported as 2006 PLC 404 and 1992 SCM R 36. I have gone through both the judgments. I have noted that in the former case it was observed by the learned judge at para 24 of his judgment that prior to promulgation of IRO 2002 there was Section 34 in IRO 1969 which is equivalent to of Section 33 of IRO 2002. The contents of Section 34 of IRO 1969 and those of Section 33 of IRO 2002 are apparently not the same. In Section 33 of the present Ordinance, the 'words "for the redressal of any grievance" have been incorporated as also observed by the Hon'able Chairman NIRC in Mazdoor Union versus Neelum Glass Industries. The learned Chairman thoroughly discussed this difference in his judgment which has now attained finality as no appeal was filed against it. All earlier judgments, according to my comprehension, have followed the wisdom and the law contained in Section 34 of the erstwhile Ordinance of 1969 and therefore the case law developed by the Hon'able Chairman in the said judgment is distinguishable from the earlier case law. For all these reasons I do not find any ground to hold that the view expressed by the learned Law Officer of OPF while relying on the judgments of 2006 PLC 404 and 1992 SCM R 36 is tenable.
10.Having said so now I revert to Section 50 (3) (a) of IRO 2002 which is reproduced below for the purpose of further analysis of the present case:- "Section 50(3)(a) of IRO 2002: in relation to cases based on allegations of unfair labour practices brought before the Commission for trial of offences, or enforcement of, or for redress of individual grievances in respect of any right guaranteed or secured to any employer or worker by or under any law or any award or settlement, perform such functions and exercise such powers as are performed and exercised by a Labour Court".
11.It is clear from the above provision of the law that NIRC's jurisdiction is limited to the cases of unfair labour practice. NIRC for the purpose of enforcement of, or for the redress of individual grievances in respect of any right guaranteed or secured to any employer or worker by or under any law or any award or settlement shall not have wide jurisdiction like that of Labour Court as spelled out in Sections 46 of IRO 2002 but shall deal with cases of unfair labour practice only in the manner laid down in Sections 46 or 33 as envisaged in Section 49(4)(e) of IRO 2002. Therefore I do not agree with the interpretation of the learned Counsel for the petitioner union but I find force in the arguments of the learned Law Officer of the respondent establishment that the above Section only gives powers of Labour Court to NIRC with regard to unfair labour practice and not the jurisdiction. NIRC, therefore for the purpose of-Section 46 of IRO 2002 shall not step into the shoes of Labour Court established under Section 44 of IRO 2002 and so the interpretation of the learned Counsel for the petitioner union is not convincing.
12. As the instant petition does not allege unfair labour practice on the part of the employer, the matter falls out of the jurisdiction of the NIRC. Moreover mere advertisement leading to interviews obviously does not create or infringe the right of any worker under any law or settlement. The infringement of right can only be judged if appointments actually made are in violation of the law, rules or settlement. If it happens, the petitioner can seek remedy from the relevant legal forum. This petition is therefore dismissed for lack of jurisdiction of this Commission.