' BASHIR AHMED MEMON (MEMBER).--- This is application under Regulation 32(2)(c) of NIRC(P&F)
Regulations, 1973 filed by the petitioner, who has filed a petition under section 49(4)(e) of I.R.O., 2002 against the respondents.
2. It has been stated by the petitioners in their petition that they are in the employment of respondents at various branches of the Bank and are also active trade unionist and all along remained the staunch supporters in promotion of the union activities and they have been elected from time to time as principal office-bearers of MCB Staff Union of Pakistan (C.B.A.). Lastly the office-bearers who were elected in May, 1997 were not acting upon the wishes, requirement and welfare of the workers and almost the office bearers, became dummy and they always were used to act on behalf of the management instead of saving the interest of members/workers, as such the majority of the members/workers of the union decided to remove 8 office bearers out of 12 by way of no confidence vote on 15-6-2008 and the petitioners and others were elected members of Executive Committee and Finance Secretary respectively on 22-6-2008 and then they have submitted list of change of office bearers before Registrar of Industry wise Trade Unions (RITU) and it was approved by order, dated 26-8-2008, photo copy of the approved change of office-bearers has been produced as Annexure "A". It has been submitted that 4 of the office bearers, who were allowed to continue by the workers at the time of no confidence motion were subsequently prevailed upon by the management and they started to work against the other office bearers as tool by the management by forcing them to submit their affidavit with regard to holding of meeting of no confidence move and the management challenged such change before the Full Bench through the removed office-bearers wherein both persons filed their affidavits just to undo the no confidence proceedings through the change and no confidence move was approved by the RITU and Full Bench was pleased to dispose off the appeal on 28-1-2009 with direction to hold fresh elections within the period of 30 days under the supervision of RITU. It has been further mentioned in the petition that since such fresh election proceedings are pending before the RITU the respondents management have started victimization at large scale and petitioners' panel namely Shaheed Usman Ghani Group was being victimized because the rival panel is being patronized by the respondents management so much so the General Secretary of the union was terminated on frivolous, baseless and concocted charges and photo copy of the termination order, dated 28-6- 2008 has been filed as Annexure "B". It is further alleged that Senior Vice-President Naeem Akhtar was also charge-sheeted on 30-7-2008 on false and fabricated charges and he was also kept under pressure to disassociate from the panel of Shaheed Usman Ghani Group and shall support the other panel and shall file affidavit like 4 others against holding of no confidence proceedings and after disposal of the appeal on 28-1-2009 the services of Naeem Akhtar Senior Vice President were dismissed, photo copy of charge-sheet, dated 30-7-2008, its reply, dated 2-8-2008, inquiry letter of Naeem Akhtar, dated 27-1-2009 have been filed as Annexures "C" "D", "E" and "F". Even the petitioner No,2 was transferred from Hyderabad to Thatta just to put him in inconvenient position for taking part in trade union activities, which shows the intention and behavior adopted by the management of respondents with group of petitioners and even so many other members of the petitioners' group were transferred to far flung area and all this prove that the respondents were determined to cause harm to the panel of petitioners by means of use of such sort of tactics by misusing of their power, photo copy of the transfer order of the petitioners have been filed as Annexures "G", "G-1" and "G-2". It has also been alleged in the petition that respondents management has also started issuing forcible retirement order on the principle of pick and chose and as an act of discrimination by using such scheme against the panel of petitioners, photo copy of one letter of forcible retirement, dated 28-1-2009 has been filed as Annexure "H". It is, therefore, prayed to determine, adjudicate the act of unfair labour practice committed by the respondents, prohibit and direct the respondent management, their officials, subordinates, agents and representatives from transferring, terminating, retrenching, dismissing, retiring or any action adversely affecting the terms and conditions of employment of the petitioners, members of the union and panel namely Shaheed Usman Ghani Group during the pendency of election proceedings and thereafter.
3. On service of notice the respondents management filed their legal objections and reply statement challenging the maintainability of the petition and asserted that the initiation of disciplinary action of misconduct, termination, retrenchment, transfer and retirement etc. Were all the contracted and legal rights of the employer and as such the managerial functions of the employer cannot be restrained under the garb of petition alleging unfair labour practice. It was stated that the allegations made in the pleadings do not fall within the ambit and purview of unfair labour practice and 3 petitioners in the main pleadings as well as in the stay application have claimed relief in respect of all the workers/members of the union and these individuals are neither the party in the proceedings nor the petitioners can espouse their cause and it has been asserted that there is no provision under Industrial Relations Act, 2008 where an individual workman has right to plead and represent other workman in the representative capacity. It has been further submitted that forthcoming election of the MCB Staff Union ordered by the Full Bench in Appeal No,12(25)/2008 was challenged before the Honourable Islamabad High Court in C.P. No,147 of 2009 and vide order passed in Civil Miscellaneous No,379 of 2009 the operation of order of. Full Bench referred above has been suspended to the extent of holding of fresh elections, copy of order of Honourable Islamabad High Court has been produced as Annexure "R/3" with the reply statement, therefore, it is prayed that stay application is liable to be dismissed.
4. I have heard arguments of Ch. Latif Saghar, learned advocate for the petitioners and Mr. Faisal Mahmood Ghani, learned advocate for the respondents and have gone though the entire material placed before the Court.
5. Ch. Latif Saghar, learned counsel appearing for the petitioners has contended that after the earlier office bearers of C.B.A. Were changed and change was approved by the RITU, this change was not liked by the respondents management, as such by way of playing an act of unfair labour practice the management of respondents vide order, dated 28-6-2008 terminated the General Secretary of the union. The newly elected office-bearers (4 persons) were threatened by the management of respondents and their affidavits were obtained by the management during the appeal proceedings before the Full Bench, which is a strong proof of act of unfair labour practice. It was argued that Full Bench of NIRC ordered holding of fresh elections but on the very same day Naeem Akhtar, Senior Vice President of the union was dismissed from service and this was another act of unfair labour practice committed by the respondents and he, therefore, prayed that interim stay order in view of circumstances that members of the union and office-bearers were since threatened by the respondents management, therefore, interim stay order is liable to be confirmed.
6. Mr. Faisal Mahmood Ghani, learned counsel appearing for the respondents while opposing to the grant of stay order asserted that according to title of the petition, the petition has been filed by 3 individuals in their individual capacity and the union is not party. There is no any substance of unfair labour practice against the employer because there is no any charge-sheet against any of the petitioner. Neither any of the petitioners has been transferred nor any inquiry has been initiated against them. He further argued that the management of respondents has right to transfer, terminate or suspend any of its employee under S.O. 12(3) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and initiation of disciplinary action is not an act of unfair labour practice as held in 2005 PLC 88. It was also argued that the union was not party and under facts mentioned in the petition it is an individual grievance and the petitioners in the shape of present petition cannot represent thousands of the workers. (2002 PLC 614). It was also argued that petition is only verified by one of the petitioners, whereas legally all the petitioners shall have to verify the petition (PLD 1961 Dacca 389) and in the present case the petition is only confined with the case of petitioner No,
1. The respondents management has not filed any appeal as the dispute was between two sets of office-bearers and the management was not party in the appeal before the Full Bench of NIRC as well as before the Honourable Islamabad High Court and by filing present petition by the petitioners the respondents have unnecessarily been dragged, therefore, it was prayed that under the circumstances the petitioners have no right to approach this Bench of Commission as well as the main petition is liable to be dismissed.
7. I have considered the arguments of both the learned counsel appearing for the parties and have gone through the relevant record and case-law.
8. Admittedly the present petition has been filed by three petitioners in their individual capacity and it has not been filed by the union and the three persons are petitioners in their application under Regulation 32(2)(c) of NIRC (P&F) Regulations, 1973 seek the prohibitory order in respect of petitioners, members of the union and panel of Shaheed Usman Ghani Group. This way if any stay order is granted as prayed by the petitioners will stop the entire working of the respondents Bank throughout the country because Shaheed Usman Ghani Panel must have voters within the whole country; therefore such type of relief will not be appropriate and legal. Admittedly there is dispute between two sets of office-bearers of the union, and the respondents management is not a party as such the petitioners are unnecessarily trying to drag the respondents in the litigation, which is not justified (2006 SCM R 562).
For the aforesaid reasons I am of the considered view that the petitioners at the most have made out a prima facie case in their favour to the extent of their grievance, as such the interim prohibitory order, dated 2-2-2009 passed by this Bench of Commission is confirmed only to the extent of petitioners and the interim prohibitory order granted for the entire members of the union is vacated. The petitioners are directed to file their affidavit-in-evidence. Put off to 22-5-2009 for filing affidavitin evidence by the petitioners.
' Announced in open Court.