' SYED AKHTAR NAQI NAQVI (SENIOR MEMBER).--- K.E.S.C. Labour Union in its own position through Ikhlaque Ahmed Khan Senior Deputy Chairman and the said Ikhlaque Ahmed Khan apparently in his individual position, has filed this petition under section 49(4)(e) read with section 20 of the Industrial Relation Ordinance, 2002 challenging thereby a Circular No,17 of 2008 dated 27-3-2008 whereby the working hours of the workers employed in the Head Office, billing offices etc. Of the respondent establishment have been increased from 34 hours to 38 hours a week while the working hours of the Medical/IHU department have been decreased from 48 hours to 38 hours a week. The petitioners have contended that proceedings for holding of referendum for determination of Collective Bargaining Agent in the establishment of the respondent are pending before the honourable Registrar, Industry-Wise Trade. Unions NIRC, Islamabad in which the petitioner union is also a party while the referendum is likely to be held in near future. It is contended that the aforesaid circular has changed the terms and conditions of service of employees of the respondent establishment which are in operation for the last three decades. It is contended that this act on the part of the respondents is against the provisions of section 40 of the IRO, 2002 which provides that no employer, while proceedings before a Court of competent jurisdiction in respect of any industrial dispute are pending, shall alter to the disadvantage of any workman concerned in such dispute, the conditions of service applicable to him before the commencement of the proceedings except with the permission of the Court and of course permission has not been obtained from any Court of competent jurisdiction. It was also contended that the aforesaid act of the respondents is act of unfair labour practice which needs to be checked by B this Commission through this petition.
2. The respondents contested the petition inter alia raising preliminary objections that the petition is not maintainable as under the garb of the petition based on allegation of unfair labour practice; the petitioners have attempted to obtain a stay/injunction order although no act of unfair labour practice has been alleged specifically and the petition is based on allegation of violation of the provisions of IRO, 2002 in general that the petition has been filed by a union which does not hold the certificate of Collective Bargaining Agent in the respondent establishment while under section 49(4)(e) of the I.R.O., 2002 a petition is to be dealt with in the manner laid down in section 33 which provides that either the employer or the Collective Bargaining Agent can file a petition; that the petitioner union has no locus standi even in terms of section 22 of the I.R.O., 2002; that the relief in the mandatory form has been sought by means of the petition which is not competent before this Commission; that the petitioner union cannot espouse the cause of individual workers in terms of section 49(4)(e) read with section 63 of the I.R.O., 2002, whereby only the C.B.A. Can file the proceedings and that too for the enforcement of any right guaranteed or secured to the CBA under any law, settlement or award while the petitioner No,2 is only an individual workman and any joint petition filed by him at best is to be read in terms of section 46 of the I.R.O., 2002 and is to be read and restricted in the context of the petitioner No,2 who cannot espouse the cause of workers in general; that the petition has been filed on an assumption that NIRC (P&F) Regulations, 1973 are on the statute book whereas pursuant to the promulgation of I.R.O., 2002 which repealed the earlier I.R.O., 1969 under which the said rules were framed, the same have not been saved in terms of section 80(2)(b) of the I.R.O., 2002 and this Commission is therefore, not empowered to grant/pass any interim orders and even the prayer in the stay application extends beyond the scope of powers of this Commission under the said Regulations and that a bald allegation unconnected with unfair labour practice has been made in the petition. Since the matter in issue is with regard to the change of the working hours of some departments of the respondent establishment which is not denied by the respondents while regard to its being a result of unfair labour practice as alleged by the petitioner the change being for every workman, no evidence is required and therefore, I heard arguments addressed by the learned counsel for the parties at length. Even the learned counsel for the petitioner conceded this position that the petition can be disposed of without reverting to evidence. Law is also clear that the legal objections are to be decided prior to resorting to evidence. I am fortified on this point by an authority of law reported as 1998 PLC 196 which is a judgment of Divisional Bench of Balochistan High Court Quetta.
3. The basic objection of the respondents is regarding the status of the petitioner union and also the petitioner No,2. Admittedly the KESC Labour Union is not a C.B.A. Certificate holder. The petitioners' claim is that the referendum proceedings are pending before the learned Registrar Industry-Wise Trade Unions but at the same time neither it has been so asserted nor there is anything on record to show that the petitioner union has been recognized by the employer/respondents as Collective Bargaining Agent for the interregnum period under section 22 of the I.R.O., 2002 with the result that the petitioner union is only a registered trade union while the claim incorporated in the petition relates to all the workers of the respondent establishment and law is clear that only a C.B.A. Union can espouse the cause of the workers in general. Section 49(4)
(e) of the I.R.O., 2002 under which this petition has been filed, describes the jurisdiction of this Commission under which this Commission can deal with case of unfair labour practices specified in sections 63 and 64 on the part of employers, workmen, collective Bargaining Agent, industry- wise trade unions or either of them or persons acting on behalf of any of them, whether committed individually or collectively, in the manner laid down under section 46 or 33 or in such other way as may be prescribed and to take, in such manner as may be prescribed by regulations under section 55, measures calculated to prevent an employer or workman from committing an act of unfair labour practice.
4. It clearly indicates that the matters have to be dealt with in the manner laid down under section 46 or 33 of the I.R.O., 2002. Under section 46 of the said Ordinance a worker may bring his grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement for the time being enforce to the notice of his employer in writing either himself or through his Shop Steward or Collective Bargaining Agent within one month of the day on which cause of such grievance arises. Then a procedure has been given to proceed further. Naturally under this provision of law a registered trade union cannot bring a grievance regarding all the workers of an establishment. So far as the petitioner No,2 is concerned, he may be aggrieved of the impugned action himself but he cannot espouse the cause of the other workers. Under section 33 of the I.R.O., a Collective Bargaining Agent or any employer may apply to the Labour Court for the redressal of any grievance or enforcement of any right guaranteed or secured to it or him by or under any law or award or settlement. This provision does not apply to the petitioner union as it is not a C.B.A. Certificate holder. So far as section 55 mentioned in section 49(4)(e) is concerned, it only provides the powers of this Commission to make such rules and regulation relating to its procedure and performance of its functions as it may deem fit but that would be with the prior approval of the Federal Government therefore it is not relevant in the instant case as no such rules or regulations have been framed thereunder. The provision of section 20 of the I.R.O., 2002 as mentioned in the petition, I fail to understand how it is relevant to the point in issue since the said provision of law only provides a procedure for holding secret ballot for the determination of Collective Bargaining Agent. The petitioner union is therefore, not competent to espouse the cause of the workers in general as also the petitioner No,2 who is an individual worker. I am fortified on this point by a few authorities of law reported as 2005 PLC at page 268, 1980 PLC at page 256 and 1975 PLC at page 427. The aforesaid citations include an authoritative judgment of a Division Bench of the Honourable Sindh High Court Karachi whereby it was held that a union ceasing to be Collective Bargaining Agent is not entitled to represent workers in pending proceedings. No contrary view was put for except a judgment of the learned Chairman of this Commission reported as Mazdoor Union Neelam Glass Industries v. Neelam Glass Industries in petition No,4A(08) of 2002. However, this order is not helpful to the petitioner since it was held therein the C.B.A. Can espouse the cause of other workers. Even under section 22 of the I.R.O., the petitioner union has no locus standi as it has not been recognized by the employer as Collective Bargaining Agent during the interregnum period of referendum proceedings. I am fortified on this point by a judgment of the Full Bench of this Commission reported as 2007 PLC at page 628.
5. The petitioners have alleged that the impugned action of the respondents amounts to an act of unfair labour practice. The impugned action apparently is an administrative affair. The petitioners should have cited the reasons for considering this action as an act of unfair labour practice because either good or bad it governs the entire workers community as well as officers of the respondent establishment. It aims at managing the affairs of the establishment apparently and it was so held in a judgment reported as PLD 1988 SC 53 at page 66 that all grievances are not justifiable before this Commission under the provision of section 49(4)(e) of the I.R.O., 2002 read with section 63 of the said Ordinance. A similar view was taken in a judgment reported as 2004 SCMR at page 28 which was followed by this Commission in 2006 PLC 342. The impugned action is about to regulate the working conditions of the workers and naturally it relates to the administrative policy of an establishment which cannot be interfered in this manner. However, whenever there is a C.B.A. Union in existence, it can negotiate with the management with regard to the working hours of workers. In this regard the learned counsel for the respondents has pointed out that under section 8 of the West Pakistan Shops and Establishment Ordinance, 1969 as well as section 34 of the Industries Act, the working hours as provided is 48 hours a week. There is no denial of this position and naturally the impugned action does not increase the working hours of the workers/workmen beyond that. Even otherwise increase in the working hours does not constitute unfair labour practice as defined in section 63 of the I.R.O., 2002. According to the petitioners there was a concession of less working hours which has been withdrawn. It was so held by the learned Chairman of this Commission in judgment reported as 1977 PLC at page 212 that withdrawal of a facility does not amount to unfair labour practice unless such steps are meant to compel the trade unions to arrive at the settlement. There being many trade unions in respondent establishment, one cannot conceive that the impugned action has been taken to coerce any of the trade union to arrive at a settlement with the management. A similar view was taken by the Bombay High Court of India in a judgment reported as 1996 IILJ 1032 that if jurisdiction is lacking it cannot be assumed on any ground whatever may be merits.
6. For the foregoing reasons the petition is not competent and therefore, it cannot proceed further for inquiry on merits, hence the same is dismissed. File be consigned to record.