This order disposes of the application filed by the learned Counsel for the respondent under Section 45(2) of IRO 2002 read with Section 50(3)(b) of Industrial Relations Ordinance, 2002 and Order VII Rule 11 CPC in the instant case that was filed by Allied Bank Workers Federation of Pakistan
(Regd) CBA against the President Allied Bank Limited, in the form of application under Section 56 of IRO 2002 read with Regulation 17 of the NIRC (Procedure & Functions) Regulations 1973. The facts leading to the filing of the instant case are that the petitioner/applicant Federation has contended that it being certified as Collective Bargaining Agent has locus standi to make the said application.
It is further contended that the industrial dispute has arisen between the respondent Bank and CBA Federation with the service of charter of demands on the Bank management under Section 25 (1) of IRO 2002 on 30.05.2006. It is contended that the respondent Bank failed to convene bilateral meeting to resolve the industrial dispute. It is contended that the petitioner Federation waited till 07.08.2006 but the intransigence of the employer not to hold bilateral negotiation continued unabated. It is further contended that the General Secretary of the petitioner Federation had attended the office of the Federal Conciliator at Karachi in compliance of the notice of conciliation dated 17.09.2006. It is contended that the respondent Bank on the other hand had declined to attend the joint conciliation meeting on the pretext that it was in violation of the order passed by NIRC in Case No, 4A(27)/2006. It is stated that the Federal Conciliator in view of this state of affair advised the petitioner/applicant Federation to seek redress of their grievance through appropriate Court. The declaration of the Federal Conciliator is appended at Annexure "F".. It is prayed by the petitioner/applicant Federation that the industrial dispute in question may be .determined and adjudicated upon according to law.
2. The 'application filed by the learned Counsel for the respondent under Section 45 (2) of IRO 2002 has challenged the application of the applicant/petitioner Federation filed under Section 56 of IRO 2002 on the ground that the same is misconceived. It is contended by him that the application has been filed for adjudication of the industrial dispute without complying with the requirements laid down in Industrial Relations Ordinance, 2002. It is further contended that no notice of strike whatsoever required under Section 31 of the said Ordinance has been submitted before invoking jurisdiction of this Commission. It is contended that all the steps taken by the applicant Federation during the period from 25.07.2006 to 07.10.2006 in pursuance of the said industrial dispute are without legal validity because they are in violation of the status quo order passed by this Commission in Case No, 4A(27)/2006. It is also contended, that this application is not maintainable before this Commission on account of the said legal infirmities which are incurable. It is prayed that the application of the applicant/petitioner Federation be dismissed.
3. In the reply statement submitted by the learned Counsel for the applicant/petitioner Federation it is contended that their application for adjudication of the industrial dispute raised by the CBA Federation is in accordance with the law as the provisions of Section 25(1) and 25(3) etc. of IRO 2002 were fully observed before making an application for adjudication of the industrial dispute in question. It is further contended that the Federal Conciliator Karachi had asked the Respondent Bank through its President on 25.09.2006 to attend the joint conciliation meeting on 03.10.2006 to resolve the industrial dispute. It is stated that in reply to the Conciliator's notice, the Respondent Bank had declined to participate in the conciliation meeting where after the Federal Conciliator advised the General Secretary, Allied Bank Workers Federation of Pakistan that it should seek redress through appropriate Court of law. It, is contended that the instant petition filed before this Commission is in order and according to the law. It is also contended that the plea of ABL taken in this regard lacks appreciation of the correct import of the status quo order passed by NIRC in Case No, 4A(27)/2006. It is contended that the status quo order had in effect restrained the Respondent Bank from terminating services of workmen. It is further contended that the order dated 07.10.2006 passed by the learned Member NIRC had disposed of the petition as withdrawn as in that regard the ABL's learned Counsel had assured that the ABL Management had no plan to terminate the services of workmen in violation of law. It is contended that the plea taken in the status quo order by the respondent Bank throughout was not tenableand was only aimed at frustrating the process- of settling industrial dispute raised by the CBA Federation. It is further contended that the applicant Federation is within its legal rights to invoke jurisdiction of NIRC for adjudication of the industrial dispute.
4. The arguments of both the learned Counsels of both the parties were heard on 15.09.2007 on the application filed by the learned Counsel for the respondent Bank with the prayer to dismiss the petition/application of the petitioner/applicant. It is argued by the learned Counsel for the respondent Bank that the application filed by him is supported by an affidavit, whereas no counter affidavit has been filed by the opposite party. It is argued that if no counter affidavit is filed then every thing stated in the affidavit is taken to be true. In this regard the learned Counsel for the respondent has relied on AIR 1941 Patna 41 and also on PLD 1995 Karachi 59. The learned Counsel also referred to Case No, 4A(27)/2006 which was filed by the petitioner Federation on 24.07.2006 wherein the following prayer was made: It is therefore, respectfully prayed that the respondent. Management may be prohibited from violating the provisions of Sections 63/40 of the said Ordinance, and not to commit any act of unfair labour practice as submitted above. It is further prayed that the respondent management may be directed to enter into dialogue on the demands served on them by the Petitioner Federation. It is further prayed that the respondents may be prohibited from terminating the services of the workers or removing them from service. It is further prayed that the management may be prohibited from declaring an illegal lock out of the workers".
5. The learned Counsel for the respondent Bank has also referred to stay application filed alongwith main petition with the prayer that respondent management may be directed to enter into dialogue with the CBA on the charter of demands served on them by the petitioner Federation as CBA. The learned Counsel has further argued that it was also prayed that the respondent be prohibited from terminating the services of the workers or removing them from service. The learned Counsel also argued that further prayer was also made to the effect that the management be prohibited from declaring the illegal lock out of the workers. It is argued by the learned Counsel for respondent that after hearing the said stay application the Commission on 25.07.2006 issued status quo in the meantime. It is argued that the matter was finally disposed of as withdrawn vide order dated 07.10.2006. It is argued that the status quo order is always qua prayer clause. It is contended that in this case the notice under Section 25(3) of IRO 2002 was submitted on 07.08.2006 and the stay order that was issued remained in operation from 25.07.2006 to 07.10.2006. It is argued that the notice of conciliation therefore is in violation of the status quo order. It is argued that it is settled law that any action taken in violation of prohibitory order or status quo order would be of no legal effect. In this regard reliance has been placed by the learned Counsel for the respondent Bank on the case law reported in 1992 PLC 136. The learned Counsel for the respondent Bank also drew attention to the effect that the Advocate for the petitioner/applicant Federation has tried to make out of mole hill of the order passed and statement given in this Court in Case No, 4A(48)/2007 on 25.08.2007. It is argued that all that has been done in that statement is that the parties had said that while determining the present dispute the contents of the case issued by the Management may be considered. It is argued that it has nowhere been agreed by the parties that the present dispute application is maintainable or notice of conciliation in this case was validly issued. It is further argued that it is the settled law that if the basic order or basic document is illegal, the entire house of cards built on this document, however, formidable it may seem to be, is what it is, a house of cards. It is argued that if the basic documents are illegal all subsequent acts get automatically knocked off.
6. The learned Counsel for the applicant Federation in his arguments has drawn attention to Case No, 4A(48)/2007 wherein the two learned Counsels during the hearing made the following joint statement: "The parties agreed that Circular No, P/INF-2007/164 dated 10.08.2007 be made applicable to all clerical and non-clerical employees. Industrial dispute Case No, 9(3)/2006 is pending adjudication before this Honourable Bench. While determining the dispute contents of the circular may be taken into consideration by this Honourable Bench."
7. It is argued that this joint statement is in a categorical term that enables this Bench to take into consideration the contents of the circular while determining the industrial dispute. It is argued that the statement is not subject to any condition or rider. It is further argued that the respondent bank resultantly has by its overt act relinquished and waived the objection on the maintainability of the application under Section 56 of IRO 2002.
8. The learned Counsel for the applicant Federation has referred to the case law (AIR 1941 Patna 41) cited by the learned Counsel for the respondent with regard to submission of counter affidavit. It is argued that the said authority is more than 60 years old and the learned Counsel was not in a position to state with certainty that it still holds the field and was ever pressed into service in Pakistan also. He has further contended that the Indian authority at any rate does not have a binding effect. In any case the aforesaid case law does not relate to the application filed by the Respondent Bank under Order VII, Rule-11 of CPC in which they have relied on the 'status quo' order granted by this Bench on 25.07.2006. He has also contended that the interpretation of the 'status quo' is a pure question of law in respect of which the law of estoppels does not apply.
9. The learned Counsel for the petitioner has also drawn attention to Regulation 19 of the NIRC (Procedure & Functions) Regulations, 1973 which according to him does not provide that the CPC will in totality apply to proceedings before this Commission. It was argued that only the principles of CPC will be followed as far as those can be made applicable. It is for the NIRC to hold which principle of the --CPC will be relied upon. It is argued that it is the settled law that labour legislation is a beneficial legislation and has to be construed liberally to redress the grievance of workers. It is also against the principles of natural justice and fair play to kill vested rights on technical grounds in view of the judgment reported in case law (2004-PLC (CS) 1014- Supreme Court). It is argued that the plea of the respondent that all steps taken by the applicant/petitioner Federation between 25.07.2006 and 07.10.2006 in pursuance of the industrial dispute are without any legal validity and is devoid of any convincing reason. It is argued that it will be appreciated if this Bench had only passed status quo order with respect to the apprehended termination of services of ABL employees throughout the country. It is argued that the 'plea is not tenable because it pre- supposes that other components of the prayer made by the petitioner Federation in Case No, 4A (27)/2006 did not form basis of the status quo order. It is contended that the prayer exclusively related to the apprehended termination of ABI, Employees. It is argued that this contention gains ground from order dated 07.10.2006 passed by this Bench in Case No, '4A(27)/2006. It is argued that it will be observed from the recorded statement of the respondent's Counsel that the respondent Bank has no plan to terminate the services of any number of workers throughout the country with the result that the Case No, 4A(27)/2006 was withdrawn. It is argued that there is not even an oblique hint in the order passed by this Bench on 25.07.2006 and 07.10.2006 that the status quo order related to any other facet of the case except the apprehended termination of ABL employees.
It is argued that it was therefore improper for the respondent Bank to have sought refuge of the statusquo order in multiple directions and hold that the submission of charter of demands by the CBA Federation under Section 25(1), notice of conciliation under Section 25(3) of IRO 2002 and the conciliation meeting convened by the Federal Conciliator on 03.10.2006 were invalid primarily because of the aforesaid status quo order. It is argued that resuming without conceding that the status quo order was co-extensive with the prayer and therefore it did not preclude the management to hold bilateral meetings on the charter of demands if the ABL management had the will to recognize the Federation as CBA. It is argued that the history of the process of certification of the Federation as CBA shows that ABL management is not inclined to extend its recognition which is blatant disregard of RITU's order up held by the Full Bench NIRC. It is also argued that the Federal Conciliator has, as a result of the respondent bank's failure to participate in the conciliation meeting convened by him, given the failure certificate and advised the Federation to seek redress from an appropriate Court of law. It is argued that the refusal of the respondent bank to entertain the notice under Section 25 (1) and 25(3) and the notice for conciliation meeting given by the Federal Conciliator was not only illegal but tantamount to continued refusal of ABL Management to recognize the Allied Bank Workers Federation as the Collective Bargaining Agent although the latter is duly certified by the Registrar Industry wise Trade Unions NIRC and Full Bench NIRC.
10.Before I arrive at certain conclusions and give my findings I would like to refer to the provisions of the law cited by the Applicant Federation as well as the Respondent Bank. The Applicant Federation has filed the application u/S. 56 of IRO 2002 read with Regulation 17 of the NIRC (Procedure and Function) Regulation, 1973 which respectively read as follows: Section 56 of IRO 2002: Raising of Industrial dispute by a federation.--
(1) Notwithstanding anything contained in this Ordinance, a federation of industry-wise trade unions or a federation at the national level may, if it is a collective bargaining agent, raise an industrial dispute affecting all employers or workers of the establishments represented by that federation and a decision of the Commission shall be binding on all such employers and workers.
Regulation 17. Application.--An application for adjudication and determination of an industrial dispute shall be in form "U".
11.It is contended by the applicant Federation that it was communicated to the employer u/S. 25(1) of IRO 2002 that an industrial dispute had arisen and consequently notice of conciliation was under Section 25(3) of the Ordinance ibid was served on the employer/respondent bank.
12. The learned Counsel for the Respondent Bank who made the application with prayer to dismiss the applicant/petition of the petitioner/applicant Federation amended the citation of the law subsequently which according to him was due to typographical mistake. It was contended that his application was under S. 45(2) read with S. 50(3) of the Industrial Relations Ordinance, 2002 and also read with Order VII, Rule 11 CPC. The learned Counsel thereby contended that NIRC is Labour Court within the meaning of Section 50(3) of IRO 2002 which exercises the power of Civil Court u/S. 45(2) of IRO 2002 for the purpose of determining industrial dispute. It was contended by him that the plaint is liable to rejection under Order VII, Rule 11 of CPC which reads as follows: The plaint shall be rejected in the following cases:-- (a) where it does not disclose a cause of action;
(b) where the relief claimed is under valued, but the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court fails to do so;
(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the requisite stamp papers within a time to be fixed by the Court, fails to do so; (d)where the suit appears from the statement in the plaint to be barred by any law.
13. After hearing the arguments of the learned Counsels of the parties and going through the relevant law I hold that the normal recourse to resolve an industrial dispute has been institutionalized in Sections 25 - 32 of IRO 2002 which have set out the stages such as bilateral negotiation, conciliation, arbitration and adjudication. All these stages are various links of the system of collective bargaining. Basic reliance in this system is on bilateralism with clear cut objective in view is to promote trust relationship between two sides of the industry i,e, employers and workers or their respective bodies created according to our system by the law of industrial relations. If at any stage in this institutionalized procedure an industrial dispute after the same has been raised has not been resolved due to inaction of or by an indifferent attitude of any party, the dispute to my mind shall be construed to be pending. So the industrial dispute raised by the applicant/petitioner Federation which is certified as CBA by the Registrar of Industry-wise Trade Union continues to be pending. Even the effort of the Conciliator has not been successful to bring the parties across the negotiation table for the purpose of dialogue. Parties are by compulsion of the circumstances are in litigation and so this cannot be cited as an example of good industrial relation based on mutual trust as a result of which faith in trade unionism seems to be losing ground in the respondent organization and the parties in their own right do not seem to find the way except a judicial forum. In so far NIRC is concerned it has already determined the fate of the petitioner federation and ball in the Courtyard of the management keeps the litigation on with no tangible benefit to any party. In view of the spirit of Section 151 of CPC that upholds the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court I pose to my self the question as how I should proceed to meet the ends of justice in this case. Though this is not any easy question to be easily responded, administration of justice should in all circumstance bring the parties in litigation in the state of harmony and balance and it is required so more in the case where the issue of industrial relation always with multi-dimensional and complicated approach is involved. Let me hold that the points raised by learned Counsel for respondent are more of technical and procedural in nature that render no help to the Court to meet the ends on substantial justice. Order VII, Rule 11 of CPC on the strength of which it has been prayed to dismiss the petition of the applicant Federation does not seem to me to apply to this case as there is a cause of action and a very genuine cause of action of the petitioner. A helpless party, only bearing the certificate of CBA awarded by the lawfully appointed authority, is knocking at the door of this Court for intervention for the genuine cause of labour. I therefore decide this point in favour of the petitioner Federation. While I do not want to dilate on the interpretation of S. 45(2) and S. 50(3) of IRO 2002 cited in the application of the respondent, I hold all other points raised in his application as mere technicalities in the way of reaching real justice in the matter and the same to me are not maintainable on the strength of verdict passed by the apex Courts. It has rightly been quoted by the learned Counsel of the opposite party that labour legislation is a beneficial legislation and is to be construed liberally to redress the grievance of workers. It has been held by the Hon'able Supreme Court in the case cited as 2004 PLC (CS) 1014 - Supreme Court, that it is against principles of natural justice and fairplay to kill rights on technical grounds. I therefore for foregoing reasons decline the application of the respondent and direct the parties to proceed with the main case.