' BASHIR AHMED MEMON (MEMBER).--- The petitioner union named above has filed the present petition under section 49(4)(e) read with 20, 21, 23, 24, 25 and Schedule-II, Clauses (a)' and (b) of I.R.O., 2002 along with an application under Regulation 32(2)(c) of NIRC (P&F) Regulations, - 1973 supported by affidavit against the respondents.
2. The brief facts as stated in the petition are that the petitioner union was certified as C.B.A. In the year 1999 by Deputy Registrar, NIRC vide certificate produced with the petition. Due to promulgation of Order VIII of 1999 the provisions of I.R.O., 1969 were made non-applicable to the respondents establishment with effect from 27-5-1999 which continued further in pursuance to Chief Executive's Provisional Constitutional Order No,1 of 1999 and the Industrial Relations Ordinance, 1969 was repealed by Industrial Relations Ordinance, 2002, whereby the protection was granted to all the existing trade unions. It is claimed that the petitioner union had enjoyed status of C.B.A. For period of only three months from the date of its certification till the promulgation of Order VIII of 1999. It is stated that after the revival of I.R.O., 2002 the petitioner union became existent and also entitled to enjoy the status of C.B.A. For its unavailed period of C.B.A. But the said status has been denied by the respondents establishment and the respondents are depriving the petitioner union to represent the cause of workers and to get the rights of workers from the management of respondents. It is stated that the referendum proceedings for determination of Collective Bargaining Agent are pending before the NIRC. It is prayed to. Stop the respondents from committing acts of unfair labour practice and to direct the respondents to recognize the petitioner as C.B.A. And release all the settled facilities till fresh referendum is held.
3. On presentation of the petition on 1-11-2006 preadmission notice was issued to the respondents calling for the comments on main petition and counter-affidavit on stay application.
4. The respondents filed their reply statement with preliminary legal objections on main petition and counter-affidavit on stay application. The legal objections were raised regarding maintainability of the petition stating therein that by filing this petition the petitioner union has attempted to circumvent the provisions of I.R.O., 2002 for determination of Collective Bargaining Agent and the petition, which has been filed in terms of sections 20, 21, 23, 24, 25 and Schedule-II clauses (a) and (b) of I.R.O. 2002, which do not fall under the ambit of unfair labour practice, as such the petition be dismissed as not maintainable. It is further claimed by the respondents that the petition filed by the union, which is not C.B.A., is not maintainable as under section 49(4)(e) of the I.R.O., 2002 a petition inter alia is to be dealt with in the manner laid down in section 33 of the I.R.O., 2002 which provides that either the employer or the C.B.A. Can file the petition. It is further stated by the respondents that admittedly Industrial Relations (Amendment) Ordinance, 1999 (Ordinance No,VIII of 1999) the applicability of I.R.O., 1969 was excluded and after promulgation of I.R.O., 2002 the matter was taken up before the Honourable Sindh High Court through C.P. No,D-1031 of 2003, wherein the order was passed that I.R.O., 2002 is applicable to the respondents establishment. The respondents further pointed out that the petitioner union itself had filed a Case bearing No,2(3) of 2003 before the learned Chairman, NIRC for allowing it to continue as C.B.A. But the same was declined by the learned Chairman vide his order 3-5-2006. The respondents have alleged that the petition has been filed with mala fide intention in order to coerce and pressurize the respondents to accept their illegal demands, as such the same is liable to be dismissed.
5. On the very first date i.e, 8-1-2006 an application under Order I, rule 10, C.P.C. Was filed by K.E.S.C.
Labour Union to join it as one of the respondents, which later on was dismissed vide order, dated 14-1-2009 and the matter was adjourned for arguments on stay application.
6. Both the parties have submitted their written arguments. I have gone through the written argui...c.Lits submitted by the parties and have also gone through the pleadings and documents placed, on record by both the parties.
7. It will be worth to mention here that K.E.S.C. Limited Democratic Mazdoor Union through its General Secretary filed Constitutional Petition bearing No,D-2140 of 2006 before the Honourable High Court of Sindh Karachi with the same prayer as in the present petition and their prayer was declined by the Honourable High Court of Sindh vide judgment passed in case reported as 2007 PLC 250 in which it was held that with the revival of the union activities in K.E.S.C. The right to have Collective Bargaining Agent under Industrial Relations Ordinance, 2002 the petitioner's certificate as the C.B.A. Under the repealed Ordinance did not automatically stood revived, moreso when upon promulgation of the I.R.O., 2002 the petitioner union was not even functioning as C.B.A. And had ceased to exist way back in 1999.
8. Under section 49(4)(e) of the I.R.O., 2002 NIRC is vested with the powers to deal with the cases specified under sections 63 and 64 of the I.R.O., 2002. The present petition has been filed to issue direction to recognize the status of C.B.A. Of the petitioner, which does not fall within the jurisdiction of this Bench of Commission, as such the petition is not maintainable on this score.
9. It is pertinent to mention here that K.E.S.C. Labour Union submitted an application through Muhammad Usman Baloch, President under section 20(2) of the I.R.O., 2002 before the learned Chairman/ RITU for holding the referendum for determination of Collective Bargaining Agent in the establishment of respondents and vide order, dated 3-5-2006 the learned Chairman/RITU accepted the said application and directed Mr. Ghulam Nabi Deeshak, the then Deputy Registrar to hold the secret ballot for determination of C.B.A. In transparent manner with association of all the parties.
10. It is also wroth to mention here that K.E.S.C. Labour Union had filed a Constitutional Petition bearing No,D-1301 of 2003 challenging the order of learned Member/RITU dated 26-8-2003 and the Honourable High Court of Sindh set aside the impugned order and directed learned Member/RITU to rehear the matter while treating the petitioner No,1 (K.E.S.C. Labour Union) as registered trade union and pass orders afresh on the application of petitioner No,1 (K.E.S.C. Labour Unon) while treating it as pending, without being influenced by the order passed earlier by it.
11. Subsequently an application was submitted before the learned Chairman/RITU for holding of referendum for determination of Collective Bargaining Agent and the learned Chairman/RITU passed the order, dated 3-5-2006 and it was observed as under:--- "that the K.E.S.C. Democratic Mazdoor Union, petitioner was determined as C.B.A. On 24-2-1999.
Thereafter Ordinance No,VIII of 1999 was promulgated whereby section 1(3) of the I.R.O., 1969 (since repealed) was amended to the extent that the Ordinance would not be applicable to K.E.S.C.
Thereafter another Ordinance No,XVI of 1999 was issued on 24th of September, 1999, which continued till the promulgation of Ordinance No,XCI of 2002, I.R.O., 2002. The K.E.S.C. Labour Union after the promulgation of I.R.O., 2002 applied before the Commission for referendum under section 20(2) on 3rd of February, 2003. The said application was dismissed by the then learned RITU vide his order dated 26th of August, 2003 holding that the Industrial Relations Ordinance, 2002 was not applicable to the K.E.S.C. And the union was still inoperative. However, this order of the learned RITU was set at naught by the learned High Court through its judgment, dated 20th of June, 2005 as mentioned in the preceding paragraph."
' It was further observed by the learned Chairman/RITU in the above said order dated 3-5-2006 that:- "the K.E.S.C. Democratic Mazdoor Union (petitioner union in the present case) enjoyed three months as C.B.A. After its determination prior to the promulgation of Ordinance No,VIII of 1999. Thereafter Industrial Relations Ordinance, 2002 was promulgated and in the ouster section i.e, 1(3) Karachi Electric Supply Company was incorporated. However, the then learned RITU as already stated dismissed the application of K.E.S.C. Labour Union on 26-8-2003 erroneously holding that the I.R.O., 2002 was not applicable to K.E.S.C. The matter set right by the Honourable High Court in C.P. No,D- 1301 of 2003 through its judgment dated 20-6-2005. The I.R.O., 2002 was promulgated through Gazette Notification dated 26th of October, 2002. The period of three years if calculated would expire on 25th of October, 2005. The case of the Democratic Mazdoor Union that after the promulgation of the Ordinance, 2002, the Democratic Mazdoor Union asked many time to allow it to perform the functions of C.B.A. But the same were declined every time by the establishment which does not inspire confidence. When asked whether any petition was filed before any forum respecting the attitude of the management whereby the Democratic Mazdoor Union was not allowed after the promulgation of the Ordinance. However, the learned counsel did not satisfy as the matter was not agitated before any forum."
' It was further observed by the learned Chairman/RITU in the said order that:--- "after the promulgation of first Ordinance No, VIII of 1999 the K.E.S.C. Democratic Mazdoor Union became totally dormant. This union never approached the Commission for any grievance being meted out to it nor approached the Honourable High Court. On the contrary, it was the rival K.E.S.C.
Labour Union which filed petition for determination of C.B.A. After the promulgation of I.R.O., 2002 on 3rd of February, 2002. Having failed to get relief from the learned RITU/Single Member this very union filed constitutional petition before the Honourable Sindh High Court which was decided on 20th of June, 2005. It is pertinent to mention here that throughout this period Democratic Mazdoor Union did not raise a single finger nor became party in the constitutional proceedings going on before the Honourable High Court. After the decision of constitutional petition they awoke from their slumber and approached the Honourable High Court as an intervener by submitting four applications mentioned above."
' It has been observed by the learned Chairman/RITU in his order, dated 3-5-2006 that K.E.S.C.
Democratic Mazdoor Union itself has wasted its tenure by not approaching any forum. Last referendum in the K.E.S.C. Was held as far back as in the year 1999. Seven years have passed. All the workers who are thousands in number cannot be deprived of their right to vote and while accepting the application of K.E.S.C. Labour Union direction was issued to hold secret ballot for determination of C.B.A.
12. The petitioner having fully knowledge of above order passed by the learned Chairman/RITU dated 3-5-2006 brought the present petition before this Bench of Commission on 31-10-2006, claiming to be C.B.A. Whereas the chapter regarding its C.B.A. Stood closed by order 3-5-2006 passed by the learned Chairman/RITU.
13. Even on merits no case has been made out in their petition. Only vague and bald allegations are made without specifically mentioning any act of unfair labour practice. The C.B.A. Certificate in favour of the petitioner union was issued for the period of two years i.e, 24-2-1999 to 23-2-2001.
However, the petitioner claims on 31-10-2006 (at the time of filing of present petition) that it was C.B.A. At the time of filing of present petition the referendum proceedings were already ordered to be held by the NIRC, as such the petition is not maintainable and the prayer sought by it cannot be granted. Accordingly while dismissing stay application under Regulation 32(2)(c) of NIRC (P&F)
Regulations, 1973 but also dismiss the main petition being not maintainable.
' Announced in open Court.
Application/.