' RAJA ABDULLAH KHAN, (MEMBER):--- This appeal is directed against the order dated 2-8-2007 of the learned Member, NIRC, Karachi Bench whereby he dismissed the stay application of the A appellants union/petitioner union against respondents management under Regulation (32)(2)(c) of the NIRC (Procedure and Functions) Regulations, 1973 in case No,4A(47) of 2007-K.
2. The facts in brief giving rise to this appeal as disclosed in the impugned order are that the appellant/petitioner is registered trade union and CBA in the respondents Establishment where 1500 workmen are employed permanently on permanent job in connection with manufacturing of tyres as per the list attached and marked Annexures "A/3" and "A/4". It is alleged that the entire factory, plant, land, machinery, Electric and Gas Installation are owned, managed and controlled by the respondents. It is alleged that the workers mentioned in the list attached and marked Annexure "A/5" have been locked out illegally on or after 14-7-2007. It is alleged that the workers as per Annexure "A/4" are being locked out every day since, 14-7-2006. It is alleged that the respondents did not issue appointment letters to the workers as per Annexure "A/4" at the time of their appointment, though took their signatures on written/printed/blank papers, vouchers etc. And continued taking signatures during the course of employment. It is alleged that the petitioner union earlier had served notice of demand, conciliation notice, strike notice and thereafter resorted to strike, which resulted in settlement for workers as per Annexures "A/3" and "A/4". Settlement is attached and marked as Annexures "A/6" and "A/7". It is alleged that the appellant union had also filed case under section 49(4)(e) read with section 63 of the I.R.O., 2002 along with application under Regulation 32(2)(c) NIRC (Procedure and Functions) Regulations, 1973 in which ad interim order was passed which is attached and marked as Annexure "A/8" which case was later on withdrawn in view of the settlement. It is alleged that workers as per Annexure "A/3" were members of the petitioner union and their monthly subscription is being deducted out of their monthly wages. It is alleged that the appellant union enrolled the workers as per Annexure "A/4" as members of the union and wrote a letter to the respondent company to deduct union's monthly subscription as per demand statement/authority letter given by 695 workers out of list Annexure "A/4", the letter dated 24-8-2006 is attached and marked as Annexure "A/9" but the respondent company did not deduct as such the appellant/petitioner union continued collecting union subscription directly in person through the unions nominated persons and are continuing the same till this day. It is alleged that the respondents never raised any objection to the union's subscription collection in person on the day of disbursement of wages. It is alleged that the respondents management committed acts of unfair labour practice and also issued charge sheets to two Assistant Finance Secretaries of the union. It is alleged that the appellant/petitioner union has also filed case under sections 21, 33 and 63 of I.R.O.,2002 before the IVth Sindh Labour Court Karachi on 13th day of July, 2007, copy attached and marked as Annexure "A/10", which is pending. It is alleged that the appellant union/petitioner union has also issued reminder on 10-7- 2007 for collection/deduction of union's monthly subscription from monthly wages and copy of which is attached as Annexure "A/11". It is alleged that the respondents started harassing, coercing, pressurizing the office bearers/members of the union due to filing the Industrial Dispute before the IVth Sindh Labour Court, Karachi. It is alleged that the respondents orally removed/lock out workers, union officer bearers due to pendency of the said dispute. It is alleged that the respondent's management always take interest in union's elections and referendum and they make sure that the persons of their choice are elected as office bearers of the appellant union/petitioner union. It is alleged that the union's elections are ahead, therefore, the respondents management started making queries from the members of the union as to whom they will vote against the panel of management. It is alleged that the pressure is particularly on members as per Annexute "A/4". It is alleged that the workers who do not answer to support management panel, stand locked out without any reason and also without written termination letter. It is alleged that the lock out resorted by the management as per Annexure "A/5" is continuing. It is alleged that the appellant union/petitioner union's General Secretary enquired from the I.R. And Factory Manager, the reasons of lockout/removal of workers as per oral orders but he could not give satisfactory answer, which is clear indication of lockout of the workers due to filing of case before the IVth Labour Court Karachi and also to discourage members of the union from continuing membership and payment of unions monthly subscription. It is alleged that on 7-7-2007 at about 10-30 a.m. The respondent No,2 called the General Secretary for meeting, who along with other office bearers went to see him. It is alleged that respondent No,2 insisted in the meeting to cancel the membership of the workers as per Annexure "A/4" and also stop collection of union's monthly subscription and threatened to remove members/office bearers of the union if the union continued with their membership and did not stop the collection of unions subscription. It is alleged that he also urged that the union can only represent the workers who cast their votes in their favour in the last referendum. It is alleged that the management of the respondents also pressurized the members of the union to give up the union membership. It is alleged that again on 16-7-2007, 17-7-2007 and 18-7-2007 the union members were asked to withdraw the case filed by them under sections 33, 21 and 63 of the I.R.O.,2002 but the majority of members did not agree. It is alleged that ultimately the respondent No,2 and other management persons pressurized to change General Secretary of the appellant/petitioner union else the management shall take serious action against the members and concerned office bearers of the union. It is alleged that interference by respondents in union's affairs is continuing. The appellant/petitioner union prayed the Court to deal with the acts of unfair labour practice on the part of the respondents and to restrain the respondents from transferring, terminating, dismissing, removing and lockout of the workers as per Annexures "A/3" and "A/4" to hold the lockout of workers as per Annexure "A/5", illegal mala fide and against natural justice, amounts to an act of unfair labour practice and to restrain the respondents from interfering in the affairs of the petitioner union in any manner.
3. The respondents filed reply statement with preliminary legal objections and counter-affidavit.
The legal objections raised by the respondents are that the appellant/petitioner union is registered with the Provincial Registrar of Trade Unions, Government of Sindh, as such it has no locus standi to invoke the jurisdiction of NIRC in terms of decision of Division Bench of Karachi High Court reported in 2002 PLC 274, therefore, the petition is not maintainable. They also contended that the petition is not maintainable on the same facts and grounds as the appellant union has earlier in point of time on 13-7-2007 filed Case No,2 of 2007 under section 33 of the I.R.O., 2002 in the IVth Sindh Labour Court, Karachi, where the issue is sub judice. This is to avoid multiplicity of the proceedings and conflict of decision as both the judicial forums have separate appellate forums. They contended that the proceedings in terms of section 49(4)(e) of I.R.O., 2002 are to be treated as if in terms of section 33 of I.R.O., 2002. These proceedings provide for enforcement of pre-determined and pre- existing right and not for adjudication and for determination of the rights. They contended that question as to whether the persons listed by the appellant union/petitioner union in Annexures "A/3", "A/4" and "A/5" are employees of the respondents establishment or that of independent Contractor Messrs M.M. Associates are disputed questions of facts, which require adjudication and determination and cannot be resolved in the present proceedings. They contended that the union and/or more specifically the persons listed in Annexures "A/3", "A/4" and "A/5" have first to approach the competent Court of law and get this established that they are employees of General Tyre and Rubber Company of Pakistan Limited. Only then they become members of the petitioner union. They contended that in the absence of any findings of a Court of law declaring the employees listed in Annexures "A/3", "A/4" and "A/5" as employees of General Tyre and Rubber Company of Pakistan Limited it is not open for the persons so listed in the Annexures to become member of the appellant union, nor for that matter the appellant union is competent to espouse their cause in the Commission. They contended that the appellant union/petitioner union is illegally constituted body, as it consists of employees not engaged in the respondent's establishment as provided in the registered constitution of the union and also includes persons employed by the independent Contractor, Messrs M.M. Associates. They contended that the petition is further not maintainable in law because none of the persons listed in Annexures "A/3", "A/4" and "A/5" have filed any document along with the petition to establish the bond of relationship of employer and the employees between them and the respondents establishment. They contended that the prayer made by the appellant union for restraining the respondents to transfer, terminate, dismiss or remove and/or affect lockout in respect of persons listed in Annexures "A/3", "A/4" and "A/5" is a vague and general prayer. They contended that this prayer is direct infringement of the employers right mentioned under section 83(2) and under Schedule II of I.R.O., 2002 to conduct the business, to manage, control and use the property of his enterprise and conduct his business in any manner considered by him and right to use available resources including human resources efficiently and effectively in the best interest of enterprise. They contended that the prayer made by the appellant union is contrary to the provisions of law and, as such, of no legal effect. They contended that the petition under section 49(4)(e) of the I.R.O., 2002 is also not maintainable as no Industrial Dispute of any nature has been raised nor the same is pending in the Labour Court or before the conciliation officer. They contended that no failure of conciliation has taken place. They contended that prayer of interim relief is out side the ambit of law and is barred by proviso of section 49(4)(e) of I.R.O., 2002. On merits of the case the respondents contended that the claim of the appellant union that the respondents have employed 1500 workmen is not factually correct. The respondents denied that the respondent No,2 is notified Factory Manger. They have contended that Syed Najam Ahmed, Senior Personnel Manger is notified Manager under Factory Act, 1934. The respondents denied that Supervisors and Managers of the respondents control and administer the entire process of tyre manufacturing. They contended that the persons mentioned in Annexures "A/3", "A/4" and "A/5" are not employed by the respondent No,1 establishment nor they are working under the control and supervision of respondents nor are paid by the respondents. They 'contended that no appointment letters or other document of any nature has been produced by the appellant union/ petitioner union to establish any bond of relationship of employer and employees between the respondent No,1 and these persons listed in Annexures "A/3", "A/4" and "A/5". They have contended that the appellant union/petitioner union is making contradictory pleas. On one hand it claims that the persons listed in Annexures "A/3", "A/4" and "A/5" are employees of respondent No,1 whereas appellant union has filed Annexure "A/7" at page 63 which is document, where the same General Secretary of the union has recognized the existence of Contractors Messrs M.M. Associates.
They contended that this document falsifies the claim of the appellant union that the persons listed in Annexures "A/3", "A/4" and "A/5" are the employees of the respondent No,1, establishment.
The respondents have denied lock out of workers listed in Annexure "A/5" since 14-7-2006. They have contended that the instant petition having been filed after lapse of more than 12 months of alleged lockout clearly shows that claim of appellant union is false and malicious and is belated and time barred. They have contended that none of the listed workers have served individual notice of grievance nor filed the petition in the Commission. They have contended that for lockout the remedy available is in terms of section 39 of I.R.O., 2002 before the Labour Court and not before the NIRC. Regarding the claim of the appellant union/petitioner union that the management of respondent No,1 have not issued letter of appointments to the workers listed in Annexures "A/3", "A/4" and "A/5" at the time of appointment over, looks the fact that at no stage in the past these individual persons had ever alleged so nor filed any case in any Court to the effect that they were employed by the respondent No,1 and were working without any letter of appointment. They have contended that this is an afterthought. Plea that the respondent No,1 took signatures/ thumb- impressions on printed or blank papers etc. And continued taking signatures during the course of employment which is vehemently denied by the respondents. The respondents contended that a memorandum of settlement was concluded between the appellant union/petitioner union and respondents management on 11-9-2006 filed by the appellant union/petitioner union as Annexure "A/6" whereas now the appellant union is making allegations that person mentioned in Annexures "A/4" and "A/5" were illegally locked out on 14-7-2007. They have contended that there is no mention of lock out nor reference to these persons listed in Annexures "A/4" and "A/5" in the settlement dated 11-9-2006. They have contended that the appellant/petitioner union in the memorandum of settlement dated 11-9-2006 had given an undertaking not to raise or to pursue directly or indirectly during the operative period of settlement any demand or dispute involving financial commitment on the part of the company and to raise any further financial or non- financial demand during the subsistence of the settlement. The respondents have denied that Messrs M.M. Associates are employees of respondent company and they are not independent Contractor. With regard to earlier petition bearing No,4A(132) of 2006-L they have contended that the appellant union/ petitioner union has itself admitted and claimed that only 800 workers are working in the respondent No,1, establishment. They have contended that earlier petition was instituted by the appellant/petitioner union with mala fide intention only to coerce and pressurize the management for the purpose of acceptance of their demands and subsequently settled by the memorandum of settlement with the union. They have alleged that after settlement the appellant/petitioner union withdrew the proceedings. They have contended that in the list Annexure "A/3" filed by the same union in Case No,4A(132) of 2006-L, the names of the persons now listed in Annexures "A/3" to "A/5" in the present petition were not mentioned nor claimed to be members of the union which further goes to show that present lists Annexures "A/3", to "A/5" are false, fabricated and prepared with mala fide intention. The respondents have vehemently denied the claim of the appellant/petitioner union that they have unearthed the number of persons listed in Annexure "A/4" while the workers listed in. Annexure "A/3" were already members and monthly subscription is deducted from their monthly wages. With regard to Annexure "A/9" attached by the appellant/ petitioner union for enrolment of 695 persons as members of the union under authority letter has been denied. They have alleged that it is false and fabricated document. Regarding effecting check of the persons listed in Annexures "A/3", "A/4" and "A/5", the respondents have stated that they were not employed by the respondents nor wages were paid by them therefore management is not under legal obligations to effect check off any payment, as no payment/wages were made by the respondents management to these persons listed in Annexures "A/3", "A/4" and "A/5". They have contended that this plea has also been taken up by this union in their Application No,2/2007 under section 33 of I.R.O., 2002 filed earlier in the 4th Sindh Labour Court, Karachi where the matter is sub judice. They have contended that the present subsequent petition is duplication of earlier pending proceedings. Allegations of committing act of unfair labour practice by issuing charge sheet to the workers are denied by respondents. They have contended that the charge sheets were issued to Israr Ahmed Khan and Muhammad Boota and notice of inquiry was issued to them. They have contended that after enquires were conducted and these two persons were found guilty hence they were dismissed vide dismissal order Annexures "R/2" and "R/3" and these dismissal orders were sent to these persons through Courier service vide Annexures "R/6" and "R/7". Allegations of the appellant/petitioner union that the respondents are harassing, coercing or pressurizing the members and office bearers of the appellant/petitioner union due to the filing of industrial dispute in 4th Sindh Labour Court, Karachi are denied by the respondents. They have contended that the settlement has been signed on 11-9- 2006 filed as Annexure "A/6" and thereafter no industrial dispute is pending. They have vehemently denied that the respondent's management takes interest in union election and referendum and make sure that the persons of their choice are elected as office bearers of the union. They have contended that the management is not aware as to when the next union elections are due. They have denied that the management is making queries from the members of the union as to whom they will vote. They have contended that there is no panel of the management. The respondents denied the allegations of the petition union that pressure is exerted by them on the persons listed in Annexure "A/4". They have denied the allegations of lock out of any persons listed in Annexure "A/5". They have alleged that these persons are not employees of the respondents. They have denied that the members of the union were pressurized to give up the union membership. They have contended that at no stage the General Secretary of the appellant/ petitioner union raised an industrial dispute and no industrial dispute is pending before any Court at Karachi. They have contended that only the case that has been filed by the Union bearing No,2 of 2007 in the 4th Sindh Labour Court, Karachi is in terms of. Section 33 of I.R.O., 2002 which has been filed only two days before the filing of the present proceedings in this Commission is for enforcement of right and not for adjudication or for determination of industrial dispute. Allegations of the appellant/petitioner union about alleged meeting on 7-7-2007 at 10-30 a.m. Wherein respondent No,2 Shahid Ghazanfar called the General Secretary is denied. They have contended that Shahid Ghazanfar is not notified Manager under Factory Act, 1934. They have contended that there was no occasion for the alleged meeting to be held on 7-7-2007 between the union and Shahid Ghazanfar. The allegations of the union that they were asked by respondents to cancel the membership of the persons listed in Annexure "A/4" and or to stop collection of the union monthly subscription is denied. Likewise allegation that the union was asked only to register those workers who cast their vote in favour of the management is also denied by respondents. Allegations of the appellant/petitioner union that on 16-7-2007, 17-72007 and 18-7-2007 the union was called upon to withdraw the case under section 33 of I.R.O., 2002 is denied by the respondents. Allegations that respondent No,2 had pressurized the union to change the General Secretary are denied by the respondents. They have contended that no lockout has been effected and no interference in affairs of the union has been made by the respondents. They have contended that no unfair labour practice has been committed by them. They have contended that transfers are effected only in view of requirement of work. Dismissal is effected in case of commission of misconduct, for which charge sheet is issued and enquiry is conducted. They have contended that entire petition is misconceived and filed with mala fide intentions and is liable to be dismissed.
4. That Zahoor Ahmed Awan, General Secretary of the appellant/ petitioner union filed affidavit in rejoinder in the stay application.
5. After hearing the learned advocates for the parties and perusal of the record, the learned Member, NIRC Karachi dismissed the stay application of the appellant union vide the impugned order, dated 2-8-2007, hence this appeal.
6. We have heard Mr. Muhammad Shafique Qureshi, Advocate for the appellants, Mr. Faisal Mehmood Ghani, Advocate for the respondent's management and Mr. Abdul Hafeez Amjad, Advocate for the intervener and perused the entire record carefully. Mr. Muhammad Shafique Qureshi, Advocate for the appellants has contended that the impugned order is liable to be set aside on the ground that though the appellants have a prima facie case and balance of convenience lay on their side, yet the leaned Member, NIRC Karachi has dismissed the stay application without appreciating the fact that the disputed workers numbering 695 are working in the respondents establishment on permanent basis and are entitled to join the appellants union and make payment of subscription to the union fund but the respondents have refused to deduct the subscription of union fund from the salary of these workers in spite of the letter of the appellants dated 24-8-2006. He has said that the order impugned may be set aside and the stay application be allowed. He has reiterated the same contentions for the &rant of stay which he urged before the learned Member, NIRC Karachi and which he rejected by giving cogent reasons. In support of his contention he has again relied upon the authorities mentioned in the impugned order which have been rightly distinguished by the learned Member while dismissing the stay application of the appellants through the impugned order and we need not repeat these authorities in this order. On the other hand Mr. Faisal Mehmood Ghani, Advocate for the respondents management has supported the impugned order and has relied upon the authorities referred to by him before the learned Member, NIRC, Karachi for rejection of the stay application which he discussed in the impugned order and held that these support the case of the respondents. He has contended that the impugned order may be upheld and appeal be dismissed having no merit at all. Mr. Abdul Hafeez Amjad, Advocate for the intervener has contended that the appeal is liable to be dismissed having become infructuous on the ground that the General Secretary of the appellant union (Mr. Zahoor Awan) who has filed this appeal is no more the General Secretary of the union because no confidence motion has been approved against him by the general body and the new General Secretary is Mr. Mukhtar ."slam.
8.(sic) We have carefully considered the contentions of the Advocates for the parties and gone through the authorities relied upon by them and we are of the considered view that the contentions of Mr. Muhammad Shafique Qureshi for grant of stay are not tenable nor the authorities cited by him support his view point. These authorities have been discussed by the learned Member, NIRC Karachi in the impugned order and has rightly held that these are not helpful to the facts of the present case of the appellants. On the other hand the contentions of Mr. Faisal Mehmood Ghani, Advocate for the respondent Management supporting the impugned order are tenable and the authorities relied upon by him as discussed by the learned Member in the impugned order fully support the case of dismissal of the stay application of appellants by the learned Member, NIRC Karachi. It is an admitted fact on record that the disputed workers have not produced any letter of appointment or other documents of any nature to establish any bond of relationship of employers and employees between respondent No,1 and these workers and in the absence of any proof of this relationship, the learned Member has rightly held that these disputed workers have no prima facie case nor balance of convenience lay on their side because such oral relationship is vehemently denied by the respondents establishment. On the contrary there is an agreement between the petitioner union and the respondents on record at page 72 of the file which is operative because this agreement is for the period from 1-1-2006 to 31-12-2007 and in the said agreement the union/CBA has agreed not to raise any financial demand except annual bonus during the period of operation of this settlement. This agreement is executed when the union consisted of admittedly 800 workers and the disputed workers (695) whom the appellants want to include as members of the union are employees of Messrs M.M. Associates Labour Contractor as alleged by respondents. The appellants alleged that as these disputed workers are working in the respondents factory hence they are entitled to join the appellant union which fact is denied by the respondents management. The question whether these disputed workers are employees of the respondents or of the Labour Contractor viz. Messrs M.M. Associates is to be decided after the parties lead evidence as rightly held by the learned Member, NIRC in the impugned order and for this purpose he has fixed the case as is clear from the impugned order but prima facie these disputed workers do not belong to respondents establishment as they have not produced any letter of appointment or any other document to prove that they were appointed by respondents and they are paid salary/wages by respondents. If these disputed workers are allowed to join the appellant union and allowed to subscribe to union fund as prayed by the appellant union, it will mean thrusting these workers on the respondent management forcibly which law does not permit to do as rightly held by the learned Member in the impugned order. For grant of interim stay order the appellant union has to establish that they have a prima facie case and balance of convenience lay on their side and they will suffer irreparable loss if the stay is refused and if any of these conditions are not fulfilled the appellant union has no case for stay. Admittedly the appellant union has failed to produce any appointment letter or any other document to prove that these disputed workers have been appointed by the respondent management and they are paid by them as discussed above. The respondent management has denied the relationship of employer and employee between the disputed workers and according to them they are the workers of Messrs M.M. Associate and they have no Administrative, Supervisory or Managerial control over these workers. The question whether there is a relationship of employers and employees between these disputed workers and the respondent management the same will be decided after the parties lead evidence as rightly held by the learned Member in the impugned order as discussed above. Hence the appellant/petitioner union has neither prima facie case nor balance of convenience lay on their side nor will they suffer irreparable loss if the stay is refused. On the other hand if the stay was granted to the appellant union as prayed by them it will amount to induct these disputed workers in the employment of respondents management and the management will suffer an irreparable loss if these workers are thrusted upon them and the respondent management will be greatly inconvenienced in this way. Besides there was no industrial dispute pending, hence the interim relief could not be granted by the learned Member to appellant union and he rightly rejected the same for cogent reasons. The Advocate for the appellants did not challenge the findings of the learned Member in respect of lockout of workers as contained in para.12 of the impugned order, rather he stated at the bar that he does not press this relief. As such the learned Member, NIRC for cogent reasons after discussing full facts of the case of both the sides and considering the case-law cited by them has rightly rejected the stay application by the impugned order which is well-discussed and well reasoned and no exception can be taken to this order which is upheld and the appeal is dismissed having no merits at all. As the appeal is being dismissed on merit, therefore, we do not think it proper to consider the contentions of Mr. Abdul Hafeez Amjad, Advocate for the intervener in respect of his application under Order I, rule 10, C.P.C.
For impleadment as respondent being necessary party for disposal of appeal, hence this application of intervener is dismissed.