This is application under Section 49(4)(e) of the Industrial Relations Ordinance, 2002 alongwith an application under Regulation 32(2)(c) of NIRC (P&F) Regulations, 1973 supported by affidavits filed by the petitioners against the respondents.
2. Facts of the case as stated in the petition are that the petitioners have been appointed by the respondents establishment for temporary assignment on contract basis for a period of one year from years 1999, 2000, 2001, 2002, 2003, 2004, 2005 and thereafter for period of one year on completion of one year. The petitioners have attained status of permanent workmen in terms of Standing Order 1(b) of West Pakistan Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968 as well as Industrial Relations Ordinance, 2002. They are members of trade union, which was formed on 20.8.2006 under the name and style of Karachi Electric Supply Corporation Employees Unity. The application for its registration is pending before Registrar Industrywise Trade Unions. Notice under Section 10 of IRO, 2002 was served on the respondents management. It is alleged that the respondents started harassment, victimization and threatened office. bearers and members of the union including the petitioners to disown the union and withdraw application, submitted for its registration to Registrar Industrywise Trade Unions, otherwise their services will be terminated. Office-bearers of union approached this Honourable Bench of Commission in Case No, 4A(63)/2006-K, and in Case No, 4A (68)/2006-K. Wherein interim prohibitory orders were passed, which were confirmed on 16.6.2007. It is submitted that the Honourable Chairman has decided issue of contract workers and appeal filed against his Order is pending before Full Bench of Commission. It is alleged that the respondents have threatened the petitioners of their termination, hence this petition.
3. On presentation of notice the respondents filed reply statement with preliminary legal objections regarding maintainability of the petition and jurisdiction of this Commission. The respondents have admitted appointment of the petitioners, but have denied claim of the petitioners as permanent workmen. It is submitted that the petitioners have been lastly appointed in terms of contract dated 1.12.2006 for fixed term. It is denied that the respondents have started harassment, victimization and threatened office-bearers or members of the union. Its is denied that the respondents have threatened to terminate the petitioners, and there is any apprehension of commission of unfair labour practice in terms of Section 63 of IRO, 2002. To effect termination, retrenchment or dismissal is the legal and contracted right of the employer and cannot be curtailed under the garb of a petition alleging unfair labour practice. It is submitted that no action by way of unfair labour practice due to any trade union activities has been taken or shall be taken by the respondents.
4. Mr. Muhammad Khursheed, learned labour representative for the petitioners has contended that the application for registration of the petitioners' union is pending before Registrar Industrywise Trade Unions. Referendum proceedings for determination of Collective Bargaining Agent in the respondents establishment are also pending.
The petitioners are contract workers and have been declared as workmen under IRO, 2002 by the then learned Chairman/Registrar Industrywise Trade Unions. The petitioners are protected from dismissal, termination and transfer under Section 10 of IRO, 2002. The petitioners have sought protection under Section 10 of IRO, 2002 in this petition and provisions of Section 63(1)(b) of IRO, 2002 are attracted in the present case. It is submitted that the petitioners are in service since year 1999 without any break. They have been threatened by the respondents management of their non- employment because of formation of union and submitting application for its registration. In case the respondents remove the petitioners from employment it will defeat object of filing of application for the registration of union and provisions of Section 10 of IRO, 2002.
5. Mr. Faisal Mahmood Ghani, learned advocate for the respondents has contended that since no industrial dispute is pending as such grant of interim relief is bared under proviso of clause (e) of subsection (4) of Section 49 of IRO, 2002. It is submitted that prayer of the petitioners falls under Section 63(1)(d) of IRO, 2002 and petition has been filed under Section 49(4)(e) of IRO, 2002. It is submitted .that interim relief sought by the petitioners cannot be granted. It is submitted that the petitioners seek protection under Section 10 of IRO, 2002, which is available to office-bearers of the union pending application for registration and not to members of the union. The petitioners are members of the union, hence cannot seek protection under Section 10 of IRO, 2002. Violation of Section 10 of IRO, 2002 is not an unfair labour practice. The petitioners are employed on contract and they cannot acquire status of permanent workmen. The petition is based on vague and general allegations. There is no element of unfair labour practice and the petitioners have no prima facie case. Affidvit-in-rejoinder is not filed, as such assertions of the respondents in counter- affidavit stands admitted. In support of his submissions Mr. Faisal Mahmood Ghani, learned advocate for the petitioners has placed his reliance on order dated 8.9.2005 of the-Honourable High Court of Sindh at Karachi in Constitution Petition No, 235 of 2005, 2007 PLC 133 (NIRC, Member), 2001 PLC 135 (NIRC Full Bench), 1987 PLC 340 (NIRC, Full Bench), 2005 PLC 88 (NIRC, Member), 2002 PLC 87 (Karachi High Court DB), 2003 TD (Labour) 411 (NIRC, Full Bench), 2001 PLC 712 (Lahore High Court), 1987 PLC 547 (NIRC, Full Bench), and 2005 PLC 327 (NIRC, Member).
6. I have considered arguments advanced by the learned labour representative for the petitioner and the learned advocate for the respondents and have gone through the record.
7. No doubt the petitioners are employed on contract in the respondents establishment since year 1999 without any break as stated in the petition, but they are simply members of Karachi Electric Supply Corporation Employees. Unity. Only office-bearers of the union pending registration are entitled for protection under Section 10 of IRO, 2002 of their dismissal, termination or transfer and not the members of the union. The petitioners not entitled to protection provided under Section A 10 of IRO, 2002, therefore, cannot seek for interim relief as prayed in application under Regulation 32(2)(c) of NIRC (P&F) Regulations, 1973, which is accordingly dismissed. To come up on 26.12.2007 for filing affidavits-in-evidence by the petitioners.
Announced in open Court.
Given under my hand and seal of the Commission, this the 29th day of November, 2007.