BASHIR AHMED MEMON (MEMBER).--- This is an application under Regulation 32(2)(c) of NIRC (P&F)
Regulations, 1973 filed by the petitioners along with petition under section 25 read with sections 17, 26 and 32 of the IRA, 2008.
2. The brief facts giving rise to the present petition are that petitioner No,1 is an industry-wise trade union of the workmen employed by respondent No,1 and is collective bargaining agent determined through secret ballot held on 20-8-2009 under the provisions of section 24 of the IRA, 2008. It has been asserted that petitioners Nos.2 to 5 are working in the capacity of workmen with the designations as mentioned with their names in the title of petition. The petitioners Nos.2 to 4 were offered letters otso called promotion dated 15-4-2009, the acceptance of same was refused by them and they claim that even thereafter they have submitted application that they do not want to be promoted as offered and those so called promotions were not acted upon and the petitioners continued to get their salaries till August, 2009 and they caste vote in the referendum held in the year 2009. It is also stated that petitioner No,5 was also later on offered so-called promotion dated 15-6-2009 and he refused to accept the same and also submitted application that he does not want to be promoted. It has been stated that all the four petitioners have been promoted with mala fide intention only to keep them away from their trade union activities, which is an act of unfair labour practice on the part of respondents, therefore it has been prayed that acts of the respondents promoting the petitioners be declared as an act of unfair labour practice.
3. On presentation of petition interim stay order dated 4-3-20101B was granted in favour of the petitioners.
4. Upon service of notice the respondents filed parawise comments with legal objections and counter affidavit denying the acts of unfair labour practice committed by them. It has been stated that the settlement was executed between petitioner No,1 and respondent No,1 on 3-4-2010 (Annex.R/1) and in terms of clause-6 of the agreement it was agreed that:--- "It is also agreed that the KESC Labour Union shall withdraw all the cases against KESC and its Management."
' Therefore in view of the agreement the petitioner No,1 was morally and legally bound to withdraw the present petition, which was only filed with mala fide intention only to harass the respondent management. It has been asserted that petitioners Nos.2" to 5 have attached their promotion letters which were served in the months of June and July, 2009 (Annex.P,P/13, P/18 and P/26) and these promotion letters were duly accepted by the petitioners and promotions have already taken effect, therefore in terms of regulation 32(2)(c) of NIRC(P&F) Regulations, 1973 this Commission is not empowered to pass any orders which would tantamount to status quo ante. It has been stated that petitioner No,4 wilfully and deliberately filed a tampered copy of document by adding "Not Accepted Please" which actually was not mentioned in acceptance submitted to the respondents and copy of same has been filed and attached as Annex. R/1 and the respondents undertake to place original on record as and when required. So far casting of vote during the referendum held in the year 2009 it has been stated that since promotion letters were served in June and July, 2009 and the referendum was nearer as such list of voters could not be got updated and for that reason since the names of the petitioners were existing in the voters list which was prepared much earlier therefore they were allowed to caste their vote and only for that reason the petitioners cannot claim that they are still workmen. The respondents have prayed not only rejection of stay application but for dismissal of main petition being not maintainable.
5. I have heard arguments of Ch. Muhammad Ashraf Khan, learned counsel appearing on behalf of the petitioners and Mr. Faisal Mahmood Ghani, learned counsel appearing on behalf of the respondents.
6. Ch. Muhammad Ashraf Khan, leaned counsel appearing on behalf of the petitioners has argued that petitioners Nos.2 to 5 being permanent workmen of the respondents caste their vote in the last referendum held in the year 2009 and the respondent management in order to decrease the number of workmen firstly had issued IBC and then. they issued so called promotion letters and the petitioners Nos.2 to 5 have not accepted their promotion letters on the ground that there has been no change in their duties and the duties which they were performing earlier are being performed by them now and according to salary slips they were getting same salary upto August, 2009 but thereafter there has been rise in their salaries and their promotion letters have been issued earlier. It has been argued that there is only cosmetic change in the promotion as earlier the petitioners who were working Meter Readers have been re- designated as Meter Inspection Officer. They have been deprived of the union agreement and have been discontinued to be members of the union. It has been argued that controversy could only be resolved when the parties are allowed to lead their evidence. Whether the promotions have been accepted or not, whether there is any change in duties, whether the petitioners have become non- workmen and the burden lies upon the respondents to prove nomenclature of the petitioners as the petitioners have not accepted the promotions and all these issues could only be resolved when there is proper evidence on record.
7. Mr. Faisal Mahmood Ghani, learned counsel appearing on behalf of the respondents argued that earlier this type of petition was filed by the petitioner No,1 CBA and in the present petition the names of petitioners Nos.2 to 5 have been added only to misguide this Bench of Commission. It is argued that the promotion is not ipso facto unfair labour practice and it is also to be seen that whether the promotion of petitioners was in isolation or it was as per policy because 3200 persons were promoted and out of them only present four persons viz. Petitioners Nos.2 to 5 have challenged their promotion. It is argued that since the promotions had taken place in the months of June and July, 2010 and the petition has been filed in the month of March, 2010 as such the promotion has already been effected therefore this Bench of Commission has no jurisdiction to grant status quo ante. The learned-Counsel for the respondents placed his reliance on 1994 PLC 476, 1984 PLC 1342, 1984 PLC 1480, 1980 PLC 752, 1986 PLC 985, 1994 PLC 476, PLD 1988 Supreme Court 53, 2004 SCM R 28, 2007 PLC 270, 2009 PLC 79 and 2003 PLC 32.
8. I have given my anxious consideration to the arguments advanced by both the learned counsel for the parties and have gone through the pleadings of the parties and entire material placed on record.
9. The promotions were ordered in the months of June and July, 2009 and the present petition has been filed by the petitioners in the month of March, 2010 and it is clear that the promotion has already taken effect, therefore this Bench of Commission is not competent to grant status quo ante. I have also considered the argument that the promotion is a contractual and legal right of the employer and such managerial function of employer cannot be restrained under the garb of petition claiming unfair labour practice. The Commission has been empowered under clause (2) of Regulation 32 to prohibit the Commission of an act/omission which constitutes an unfair labour practice. But the Commission has not been vested with such power in respect of an unfair labour practice already committed covered by above clause. There is plethora of case-law laying down the proposition that regulation 32(2) is attracted only when there is some apprehension that an unfair labour practice is likely to occur, to prevent which some interim measures are called for. The interim relief of preventive/prohibitory nature can thus be granted only in case where unfair labour practice is likely to occur, but in the case in hand, if there is any unfair labour practice, it has already been committed, it is taken care in para (1) of Regulation 32 which provides that the commission may deal with such a case under section 25-A, section 34 or section 53 keeping in view the nature .Of the case. (Reliance is placed on 2001 PLC 103).
10. In the present petition the petitioners by way of interim relief seem to have sought final relief which cannot be granted in the present proceedings.. Reliance is placed on 2003 PLC 32 where it has been held that: --- "National Industrial Relations Commission in its interim order suspended transfer orders of employees in spite of fact that orders of transfer were implemented as also order of reversion- Impugned order was against settled principles governing grant of temporary injunction."
11. Moreover the petitioners have levelled bald and general allegations without any substance as what activities they performed which were not liked by the management and the management has been compelled to keep them away from the trade union because none of the petitioners is an office-bearer of the union. Had the management had any disliking they could have easily promoted the main/principal office-bearers of the CBA. Accordingly the claim of the petitioners does not fail within the ambit of unfair labour practice therefore the petition is not maintainable.
' In view of above facts and circumstances I am of the considered opinion that the petitioners have failed to establish a case of unfair labour practice. Accordingly not only the stay application but the main petition stands dismissed.
Petition and .