' RAJA ABDULLAH KHAN (MMBER).--- The petitioner has filed this petition under section 49(4)(e) of the I.R.O., 2002 against the respondents with the following prayer:- "That this honourable Court may kindly be pleased to pass an order directing the respondents not to commit any act of unfair labour practice. It is further prayed that the respondents be directed to allow to the petitioner, the revised pay scales at par with the Government of Pakistan Pay Scales, as announced on 1-7-2005. The respondent may also be further directed to allow promotion to the petitioner as per routine policy and not to withhold the same."
2. The facts in brief giving rise to this petition are that the petitioner is permanent employee of the respondents establishment and is a trade unionist. It is alleged that due to the active participation of the petitioner in the affairs of the trade union he is Secretary General of the PTCL Lions Staff Union which is a registered industry-wise trade union and is main contestant/opponent of the sitting/recognized C.B.A. It is alleged that the petitioner union had always acted in the best interest of the workers. It is alleged that when the PTCL was created by an Act XVIII of 1991 it was, called Pakistan Telecommunication Corporation Act, 1991 and according to section 9(2) of this Act the terms and conditions of service of any such person as is referred to in subsection (1) shall not be varied by the Corporation to his disadvantage, a copy of the Act is enclosed with the petition as Annexure "A". It is alleged that in the year, 1996 Pakistan Telecommunication Reorganization Act, 1996 was promulgated for the purpose of reorganization of Telecommunication system in Pakistan and Pakistan Telecommunication Authority, the Frequency Allocation Board, NTC, Pakistan Telecommunication Central Employees Trust, Regulation of Telecommunication Industries, transfer of telephone communication services were created. According to section 2 clause (f)
"Telecommunications Employees mean employees of the Corporation who are transferred to employment of the Company under this Act, other than those to whom subsection (3) of section 36 applies and to all persons who on the effective date for the Company, were employees of the Corporation, the former Telegraph and Telephone Department of the Federal Government and are entitled to receive pensionary benefits from the Corporation. Again under section 36 subsection (1) ibid no person transferred to the company pursuant to section 35, hereinafter referred to as "Transferred Employees" shall be entitled to any compensation as consequence of transfer to the company. Under subsection (2) of section 36 it has been provided that subject to subsection (3) of section 36, the terms and conditions of any transferred employee shall not be altered adversely by the company except in accordance with the laws of Pakistan or with the consent of the transferred employees and the award of appropriate compensation. Copy of the Telecommunications Re- Organization Act of 1996 is enclosed as Annexure "B". It is alleged that in the year, 2005 i,e, on 14-6- 2005 the respondents management entered into an agreement with 9 registered industry-wise trade unions including the petitioners Union and again under clause 1 of the agreement it was decided that the terms and conditions of the employment shall remain as per existing provisions of the Pakistan Telecommunication Re-Organization Act, 1996. Copy of this agreement is enclosed as Annexexure "C". It is alleged that most important document is Share Purchase Agreement of the respondent management with the President of the Islamic Republic of Pakistan and according to clause 16.1 all existing benefits of employees of the company shall not be changed, varied or discontinued to the detriment of employees for a period of one year from the date of this agreement and thereafter only in accordance with the provisions of applicable law and contract of the employees. Copy of the agreement is enclosed as Annexure "D". It is alleged that the respondents management had been providing pay scales equivalent to Government of Pakistan uptill 30-6-2005 and whatever the change was made by the Government of Pakistan the respondents had been extending to the employees of PTCL. It is alleged that on 1-7-2005 the Government of Pakistan revised its scale and issued Office Memorandum, dated 1-7-2005, copy of which is enclosed with the petition as Annexure "E" but very cleverly the respondents management issued an inter office memo. Dated 29-7-2005 (copy of which is enclosed as Annexure "F" with the petition) made 35% increase of basic plus incentive pay to all employees of BPS-1 to 16 as on 30-6- 2005 simply to show that the respondent has followed the earlier officer memorandum of the Government of Pakistan dated 1-7-2005 but in fact the revised basic pay scales introduced by the GOP on 1-7-2005 were ignored and the increase plus incentive pay of 35% was allowed a day earlier i,e, 30-6-2005 so that this increase and incentive pay shall not be made on the revised pay scales which has resulted into grave financial loss to the petitioner and others. This fact can further be verified from the annual increment granted to the Linemen of the respondents, the name of the petitioner appears at S.No,12 of the list which is enclosed as Annexure "G". This would reveal that it is much less than the revised pay scales announced by GOP on 1-7-2005. It is alleged that Government of Pakistan had made further 15% increase in the pay vide office memorandum dated 1-7-2005 as such the petitioner and others are deprived of this 15% increase in the pay which the respondent under above referred agreement as well as Acts is bound to follow and non-following of the GOP increase in pay particularly to the petitioners amounts to discrimination, disadvantage as well as discrimination with regard to the terms and conditions of service falling within the mischief of unfair labour practice under section 63 of I.R.O., 2002. It is alleged that likewise the respondents management have also made discrimination with regard to the promotions of the employees including the petitioner vide office order dated 22-6-2006, copy of the same is enclosed as Annexure "H". It is alleged that the discrimination, financial loss, injury to the right of promotion by the respondent is an act of unfair labour practice, hence this petition within the jurisdiction of this Honourable Court which is competent to try the same with the prayer as mentioned in para.1 of this order.
3. The respondents have filed written statement in which they have taken preliminary objections regarding the maintainability of the petition as framed both in law and facts. They have contended that he instant petition is liable to be dismissed on the sole ground of having been filed by the petitioner, which lacks the required statutory competence and capacity (Locus Standi) to file the same relating to enforcement of any terms and conditions of award or settlement. They have contended that the said incompetence of the petitioner for filing this petition is due to the fact that it does not have the requisite statutory status of C.B.A. They have contended that as per sections 20(13) and 33 of Industrial Relations Ordinance, it is only the Collective Bargaining Agent (CBA) who is statutorily authorized and entitled to approach this Honourable Commission in connection with the matters relating to enforcement of any terms and conditions of any award or settlement executed between the employer and C.B.A. They have .Vehemently denied all the allegations of unfair labour practice. They have admitted the execution of agreement dated 14-6-2005 between the respondents management and all the unions representatives including the union of the petitioner. They have contended that the respondent company is a Public Limited Company registered under the Companies Ordinance, 1984, therefore, the revised pay scales introduced by the Federal Government on 1-7-2005 are no more applicable to the employees of the respondents company. They have contended that in order to increase the purchasing power of employees of the Company keeping in view the on-going inflation trend prevailing in the Country, 35% increase in the salary has been given by the respondent company to its employees as admitted by the petitioner himself. So far as the contention of the petitioner regarding grant of Government Pay Scales is concerned, they have contended that the petitioner union has itself agreed with the respondents Company for introduction of Company Scales through an agreement dated 14-6- 2005 and in pursuance of this agreement, a settlement had arrived at on 28-10-2005 between the respondents Company and C.B.A. And in the light of the said settlement dated 28-10-2005 the respondents Company has taken up the matter vigilantly with C.B.A. And the efforts in this regard are underway to constitute the committee for its appropriate recommendation regarding formulation of Company Scales. The respondents have denied all other allegations levelled against them. They have prayed that petition may be dismissed. As the respondents have raised preliminary legal objection regarding the maintainability and jurisdiction of this Court hence with the consent of the Advocates for the parties I have decided to dispose of this preliminary issue first.
4. I have heard the arguments of the Advocate for the parties on the above preliminary issue and perused the record carefully. Chaudhry Muhammad Ashraf Gujar, Advocate for the respondents has contended that the petition filed under section 49(4)(e) of the I.R.O., 2002 is not maintainable because the petition does not disclose any act of unfair labour practice on the part of the respondents as specified in sections 63 and 64 of I.R.O., 2002. He has contended that perusal of the petition from paras.1 to 9 does not disclose any averment relating to any act or event which could be said to constitute an act of unfair labour practice. He has said that no discrimination has been indicated by the petitioner having been made by the respondents against him. Hence he urged that this petition is liable to be dismissed being non-maintainable. He also contended that this petition is liable to be dismissed on the ground of having been filed by the petitioner which lacks the required competence and capacity (Locus Standi) to file the same relating to the enforcement of any terms and conditions of award or settlement. According to the Advocate for respondent the petition could be filed only by the C.B.A. As required under sections 20(13) and 33 of I.R.O.
2002. He has contended that as no lawful trade union activities have been indicated in the petition which has annoyed the respondents to deny any right to the petitioner, hence this petition is not maintainable. In support of his contention he has relied upon the authorities reported in Amjad Mehmood v. Zonal Head, U.B.L. Zonal Office, Jhelum and 2 others 2001 PLC 702, Amir Baz and 3 others v. S.N.G.P.L. 1999 PLC 49 and Khizar Hayat and 4 others v H.B.L. Limited through its President Head Office, I. I. Chundrigar Road Habib Bank Plaza, Karachi 2000 PLC 492.
5. On the other hand Mr. Abdul Hafeez Amjad, Advocate for the petitioner has contended that the petition is maintainable because rights guaranteed to the petitioner regarding this terms and conditions including pay are guaranteed which are being denied by the respondents due to his lawful trade union activities. He has said as the petition is filed by the petitioner in his individual capacity, hence the same is maintainable and there is no need of the C.B.A. To file the same.
6. I have carefully considered the contentions of both the sides and gone through the authorities relied upon by Chaudhry Muhammad Ashraf Gujar, Advocate for the respondents and I am of the considered view that the contentions of Chaudhry Muhammad Ashraf Gujar, Advocate for the respondents are tenable and the authorities relied by him support his view point while the contentions of Mr. Abdul Hafeez Amjad, Advocate for the petitioner are not tenable. It is an admitted position that the petitioner has filed this petitioner in his personal capacity as admitted by Mr. Abdul Hafeez Amjad, Advocate for the petitioner. Under section 33 such petition can be moved by the petitioner before the Labour Court and not before the N.I.R.C. Which gets jurisdiction if elements of unfair labour practice are specified in the petition as provided in sections 63 and 64 of I.R.O. 2002 but no such unfair labour practice on the part of the respondents has been indicted in this petition. Mr. Abdul Hafeez Amjad, Advocate for the petitioner has admitted during the course of arguments that no discrimination regarding the pay and other terms and conditions have been made by the respondents in respect of other transferred employees like the petitioner. As the Advocate for the petitioner has admitted that no discrimination has been made by the respondents in the terms and conditions of the petitioner and other transferred employees and no specific allegation of unfair labour practice has been made in the petition therefore, this petition is not maintainable. Admittedly the union to which the petitioner belongs is signatory to the agreement dated 14-6-2005 along with 8 other trade unions regarding the terms and conditions of the employees and no violation of the said agreement has been made by respondents hence this petition is not maintainable. If the respondents had violated the agreement dated 14-6-2005 the C.B.A. Of the petitioner union should have filed the case before the N.I.R.C. Which is not the case here.
7. For the above reasons the petition is hereby dismissed being non-maintainable. This view finds support from the judgments relied upon by the Advocate 'for the respondents as referred to above.
The petitioner can approach the Labour Court in respect of his term and condition which is proper forum for the same if so advised.