' MUHAMMAD SHABBIR JAMAL (MEMBER).--- The instant petition was filed under section 49(4)(e) of the Industrial Relations Ordinance, 2002 contending that the petitioner is apprehending unfair labour practice on the part of the respondent establishment intending to causing victimization and injury to his employment by way of discharge, removal, dismissal, termination, posting etc. It is contended that the petitioner in his capacity as General Secretary of the C.B.A. Union submitted to the respondent in writing three basic issues; (i) non-payment of overtime due for the months of February, March and April; (ii) non-implementation of revised pay scale; and (iii) non-payment of ad hoc increase of 15% of pay for the year 2006-2007. It is further contended that written request was made by the petitioner to the Managing Director of respondent-Establishment to resolve these issues and at the same time the petitioner called a meeting of the union on 15-5-2007. It is contended that a day earlier i,e,. On 14-5-2007 the petitioner was called in his office by the Managing Director and he was asked to explain as to why he had convened the meeting of the union on 15-5-2007. It is further contended that the petitioner was told not to hold the meeting called on 15-5-2007 because the respondent was giving something to workers. It is stated that after the meeting only the overtime for the month of February was allowed whereas the remaining issues/demands stated in the above remained unresolved. It is further contended that the petitioner therefore, convened the meeting on 15-5-2007 and discussed all the issues with the union. It is also contended that after the meeting the petitioner went to the office on 16-5-2007 to perform his duty when he came to know that the respondent-Management was in preparation of some order most probably regarding posting of the petitioner from Islamabad to Lahore. It is further stated that till 17-5-2007 i,e, date of filing of the instant petition no such order or any other order was issued or received by the petitioner.
2. The instant petition was presented to this Bench by learned counsel, Mr. Abdul Hafeez Amjad on 17-5-2007 which was accompanied by stay application and affidavit duly attested by the Oath Commissioner. After preliminary hearing of the case the petition was admitted and status quo was ordered in the meantime where the case was fixed for reply of the respondent .On 19-5-2007.
3. The respondent-Establishment filed the written reply on 19-5-2007. Since the petitioner's counsel was called absent, the copy of the reply statement was received by the petitioner and the case was fixed for arguments on 25-5-2007. This date was noted by the learned counsel for the petitioner on the same date as he entered appearance in late hours. The case was partially argued on 25-5-2007 by the learned counsel for the petitioner, but he could not conclude his argument because Court time was over at 12-00 O'clock because of Friday. The case was thus fixed for 28-5- 2007. The learned counsel for the petitioner appeared on that day but he did not argue the matter further and stated that he had to appear before the Federal Shariat Court in an urgent matter contending that his case was fixed at serial No,2. He stated that in this situation he was not able to argue the case further. The case was thus, accordingly fixed for 31-5-2007.
4. The learned counsel for the petitioner was called absent on 31-5-2007 whereas the learned counsel for the respondent submitted that the case being delayed by the other party intentionally which was against the interest of the respondent. He, therefore, submitted that his arguments be heard even if the learned counsel for the petitioner was not present. It was further stated that the opposite party had already availed sufficient time in this matter. In view of the submission of the learned counsel for the respondent it was considered to be in the interest of justice to allow the respondent's learned counsel to argue the matter.. It was however, directed that the learned counsel for the petitioner would file written arguments covering all other contentions, if any, not earlier argued, three days before the announcement of the order. The date for announcement of the order, after hearing the arguments of the learned counsel for respondent, was fixed for 11-6- 2007. But till Saturday, June 9, 2007 no such written arguments were filed.
5. The learned counsel for the respondent argued the matter at length. In his arguments he reiterated the contentions contained in the written statement, wherein the following preliminary and legal objections were raised:--
(1) The petitioner, under the law has no locus standi to file the instant frivolous petition. Nor the petitioner is an aggrieved person within meaning of section 49(4)(e) of I.R.O., 2002.
(2) The case of petitioner does not fall within the mischief of unfair labour practice as defined in section 63 of .I.R.O., 2002. Therefore, this Commission lacks jurisdiction to entertain this petition and adjudicate upon the matter.
(3) The petitioner has no cause of action to file instant vexatious petition as no prejudice has been caused to him. The petitioner is liable to serve anywhere in Pakistan hence estopped by his own words and conduct (copy of appointment letter attached). It is mentioned that the petitioner has been serving at Islamabad since 1998 and has been posted/transferred to Regional Office, Lahore in the exigency of service and in public interest hence not a punishment or victimization as alleged.
(4) That no industrial dispute exists between the C.B.A. And Management of C.B.A. As alleged no admissible benefit of service has been denied by the answering respondent.
(5) That the petitioner in capacity of General Secretary of C.B.A. Cannot claim immunity against his transfer/posting to Lahore in the exigency of service due to retirement of Mr. Muhammad Azam, driver w.e.f. 4-5-2007 (copy of retirement office order dated 9-4-2007 attached).
(6) The instant petition, inter alia is not maintainable in view of bar contained in sections 33 and 46 of I.R.O., 2002 hence liable to be dismissed in limine.
6. While reply to objection No,1 the learned counsel for the petitioner argued that the petitioner under the law had locus standi because he was the general Secretary of the sitting C.B.A. And in that regard change of office-bearers duly approved by the Honourable RITU on 29-3-2006 was enclosed with the petition as Annexure "A" (page 4) and petitioner's name in the said change appeared at serial No,3. As to whether the union, of which the petitioner claims to be General Secretary, is C.B.A., the learned counsel stated that no C.B.A. Certificate had been attached with the petition. It was confirmed by the Deputy Registrar (R) of NIRC that C.B.A. Certificate had since been issued to the said union vide No,4190. In this regard the learned D.R.(R) stated that the union was certified as C.B.A. In its capacity as single union. The learned counsel argued that no charter of demands was raised. He stated that tried said union had raised the voice for rights guaranteed under the law with regard to overtime payment, revised pay scale and ad hoc relief. It was argued that the petitioner had submitted the written request to the Managing Director to implement these guaranteed rights to the workers of OEC. It was further argued that only the right of overtime was allowed whereas no decision was taken for the implementation of other two rights i,e, revised pay scales and ad hoc relief of 15% of pay for the year 2006-2007. It was argued by the learned counsel that the raising of demands by the union for enforcement of these rights was attracted by section 33 of I.R.O.
2002. In support of his contention whether a union can filed a grievance petition for the enforcement of guaranteed rights to workers, the learned counsel cited the decision of the Honourable Chairman in Mazdoor Union v. Neelam Glass Industry Ltd. In Case No,4A(8) of 2001, decided on 28-6-2004. The learned counsel also drew attention to the functions of CBA under section 20(13) of the Industrial Relations Ordinance, 2002 which inter alia provided that collective bargaining agent in relation to an establishment or group of establishments shall be entitled to:--
(a) undertake collective bargaining with the employer or employers on matters connected with employment, non-employment, the terms of employment or the conditions of work, other than matter which relate to the enforcement of any right guaranteed or secured to it or any award or settlement;
(b) represent all or any of the workmen in any proceedings;
(c) give notice of, and declare, a strike in accordance with the provision of this Ordinance; and
(d) nominate workmen on the Boards of provident fund and Workers participation fund of their respective establishment or industry.
' The learned counsel argued that in view of clause (b) above a CBA can represent workers before the Management even with regard to the enforcement of their legal rights in any proceeding and as such the act of the petitioner was fully covered by the existing law.
7. The learned counsel for the petitioner further argued that this petition was not attracted by section 63(1)(d) of the said Ordinance, but was attracted by section 63(1)(b) of the Ordinance of 2002, according to which refusal to employ or refusal to continue to employ any person on the ground that such person is or is not a member or office-bearer of a trade union is an unfair labour practice on the part of employers. He argued that the petition as such was not covered by proviso to section 49(4)(e) of the Ordinance (ibid). He argued that the General Secretary of CBA had locus standi under section 33 to espouse the cause of workers. While replying to objection No,2 the learned counsel argued that the law had not been thrashed out clearly and minutely in this objection. He contended that it had been admitted by the respondent in paragraphs 1, 2 and 3 of the reply statement that the petitioner was General Secretary of the CBA Union.
8. The learned counsel for the respondent in addition to his contentions as mentioned in the reply statement argued that under Order XXXIX, rule 2-A of C.P.C. Interim injunction cannot exceed 15 days if it is passed in the absence defendant/respondent. He argued that Rules 2-B (ibid), it cannot after hearing the parties or after giving a notice to the defendant shall have effect on the expiration of six months unless extended by the Court after hearing the parties again and for reasons to be recorded for such extension. He also argued that the learned counsel for the petitioner has not pointed out that under what law/rules the petition relied upon getting the status quo order from this Court. He argued that status quo was granted on 17-5-2007 to remain effective in the meanwhile with the direction to come up on 19-5-2007. It is contended that the status quo expired on 19-5-2007 as there was no order by this Court to extend it beyond 19-5-2007 i,e, the date of hearing. He argued that there was no specific order as to whether the status quo was extended or vacated. He further argued that the interim injunction passed by this Court was not status quo ante because the transfer order was issued by the respondent-Establishment on 16-5-2007, while the stay order was granted on 17-5-2007. He argued that the transfer order was still in the field because it was not suspended by this Court. He argued that it would therefore, continue to be in the field. He argued that the petitioner could not question the vires of his transfer order issued before the grant of status quo. He argued that the petitioner was inkling his transfer order, dated 16-5-2007 and therefore, disappeared from the office by leaving application on the alleged pretext of illness of his mother. He argued that the petitioner left the office without getting his leave sanctioned. The petitioner learned counsel stated, was also absent on 17-5-2007. The learned counsel further stated that the petitioner received his order of transfer on 18-5-2007 by acknowledging the receipt and affixed signature on the office copy. The learned counsel further argued that the matter was agitated by the petitioner as a matter' of right for which he could not move this Court. The learned counsel however explained the instance of the respondent on these points and measures taken by him. He argued that position of the respondent had been fully explained in the reply statement (paragraph 4). The learned counsel further argued that it was already admitted by the learned counsel for the petitioner that no charter of demands was served on the Management and so no industrial dispute was pending between the Management and CBA Union. The case of the petitioner, the learned counsel argued, was therefore, hit by the proviso to section 49(4)(c) of I.R.O.
2002. He argued that the status quo granted was as such not according to the law. The learned counsel further argued that the cause of grievance of the petitioner did not fall under section 63(1)
(b) of I.R.O., 2002 as argued by the learned counsel for the petitioner during the last proceedings before this Court. He argued that superior Courts had already held that no party could argue the matter beyond its pleading. The learned counsel for the respondent also argued that transfer was not punishment as held by the superior Courts in the following judgments:- ' PLD 1995 SC 530; 1983 PLC (C.S.) 157; 1997 PLC (C.S.) 940 and PLD 1992 Kar.
65.
9. The learned counsel for the respondent argued that the transfer was part of terms and conditions as contained in the appointment letter dated 1-12-1998 which was accepted by him at the time of appointment. He argued that the act of the petitioner was therefore, covered by the principle of estoppels and thus, he could not agitate the matter. The learned counsel pointed out that in paragraph 6 of the petition it was stated that the respondent-Management was in preparation of some order, most probably regarding the posting of the petitioner from Islamabad to Lahore. He argued that the petitioner was aware of his transfer order, dated 16-5-2007. The learned counsel argued that since the transfer order, dated 16-5-2007 was not challenged before this Court, hence the instant petition was not maintainable. The learned counsel further argued that for individual grievance the petitioner could reach proper forum if so advised but not before NIRC. The learned counsel argued that since the instant case was not made out as an arguable case, the application for grant of stay order was without any force or substance. It was on the basis of these arguments, prayed that the same be dismissed because the transfer of the petitioner was not an irrenarable loss to him and also because no application for registration of union was pending. It was contended that the case of the petitioner was not covered under section 10 of I.R.O., 2002 for grant of stay or otherwise. It was prayed that the status quo order be recalled.
10. The petitioner who remained present during proceedings/ arguments of the learned counsel for respondent on 31-5-2007 did not controvert the facts of his absence from the office without permission to leave as were brought to the notice of this Court. He simply stated that he had to leave the office without obtaining the sanction of the competent authority under compelling circumstances regarding illness of his mother.
11. After hearing both the learned counsel and going through the contents of the file I in the first instance hold the view that the petitioner's learned counsel had nothing to add to his arguments earlier advanced despite the fact he was provided ample chance for it. It was in the interest of the petitioner that a detailed order of the proceedings, dated 31-5-2007 was written covering the arguments given by the learned counsel for the respondent and therefore, if he had something to argue further he could do so by filing his written arguments before the announcement of this order.
Since he has not filed any written arguments, in this regard I shall confine myself to what he has already argued and to what are his pleadings insofar as the petitioner's learned counsel is concerned. I am not inclined to concede to the argument of the learned counsel for the respondent that the interim order, dated 17-5-2007 expired on 19-5-2007. I hold the view that interim order is given in the absence of the other party on the face of the case. It shall remain in operation unless it is recalled or the petition is disposed of after hearing the parties or disposed of after providing them sufficient chance of being heard. The interpretation or explanation of the law in this regard by the learned counsel to my mind is not tenable in law. Lam also not inclined to concede to his argument that the transfer being part of terms and conditions as contained in the appointment letter, dated 1-12-1998 which was accepted by the petitioner at the time of appointment and so his act covered by the principle of estoppels and thus he could not agitate the matter.
Notwithstanding the facts of this particular case I understand that the terms and conditions of employment within the meaning of labour laws are subject to change as a result of collective bargaining and even otherwise the application of the principle of stopples cannot be applied to the grievance of the employee regarding frequent transfer Or transfer on account of mala fides unfair deal with the employee.
12. So far as this particular case is concerned, the transfer order to my mind stood implemented as soon as it was received by the petitioner who was under no exception in matter of transfer. His transfer should have been prejudiced if the application for registration of his union were pending before the Registrar of Trade Unions under section 10 of I.R.O., 2002 or there were pending negotiations with the Management in an industrial dispute raised within the meaning of the said law. It was admitted by the learned counsel for the petitioner that his case was' not that of an industrial dispute. Therefore, restraining the Management from transferring the petitioner is not according to the law. The fact of the matter is that it was stated in the pleading that the respondent-Management was in preparation of so- pie order, most probably regarding the posting of the petitioner from Islamabad to Lahore and as such the case of the petitioner could be attracted by section 63(1)(d) of the Ordinance of 2002 but it was argued by his counsel that the case of the petitioner fell within the scope of section 63(1)(b) of the said Ordinance. By no stretch of imagination I find that this is a case of section 63(1)(b) (ibid) as the petitioner has not been refused the employment by his employer. He has simply been transferred. The argument of the learned counsel for respondent in this regard that no party could argue the matter beyond its pleading has force.
13. The learned counsel for the petitioner has argued that C.B.A. Can espouse the cause of workers under section 33 of I.R.O., 2002. First of all this case has not been filed under section 33 (ibid), therefore, the matter as such is not pending before this Court for determination. The matter brought before this Court is of an allegation of unfair labour practice. I do not have any reason to determine the matter which is not pending before me. I, therefore, do not dilate on the said argument. Now the question is whether a CBA can take matters of rights before the Management for the sake of collective bargaining. Not of course. Attention in this regard is drawn to the definition of "industrial dispute" under .Section 2(xvii) of I.R.O., 2002 according to which no industrial dispute can be raised on matters of rights. It is also clear from section 20(13)(a) by virtue of which CBA is restrained from undertaking collective bargaining on merits of rights. Trade union by its definition given in section 2(xxix) has also the purpose to defend the rights of workers and CBA being a trade union should also do it but according to the procedure given in section 46 of I.R.O., 2002 can do so if individual workers make petition for enforcement of their legal rights through CBA, otherwise they can directly apply to the employer or through shop steward if available. The manner adopted by the General Secretary of CBA of OEC is not strictly according to the law.
14. Since the order of transfer has been received by the petitioner, the same stood implemented.
Status quo granted in the matter on 17-5-2007 is, therefore, recalled. As this petition is based on the allegation of unfair labour practice, NIRC has the jurisdiction to determine it. It appears that the General Secretary of the CBA has acted in the manner as if it were an industrial dispute. Since to my mind he has not rightly applied the law, he under the instant case could not make out his case to be covered by section 63 of I.R.O., 2002. From the facts of the case I do not find any justification to further proceed in the matter by any evidence. I, therefore, in exercise of regulation 34 of NIRC (Procedure and Functions) Regulations, 1973 dispense with any examination, cross-examination or re-examination. The petition having no force is, therefore, disposed of as dismissed.