' ALI MUHAMMAD BALOCH (MEMBER).--- This revision application has been preferred under section 48(3) of the Industrial Relations Ordinance, 2002 (repealed) whereby impugning the order dated 20-3-2006 passed by the learned Presiding Officer, Sindh Labour Court # III at Karachi, which was challenged before the High Court of Sindh, Karachi, through L.R.A. # 12 of 2006 and after coming into existence of this Tribunal, the said L.R.A. Has been received from High Court of Sindh , Karachi.
' Mr. Bacha Fazal Mannan learned Counsel for the applicant and Mr. S.M. Yaqoob learned counsel for the respondent management has advanced their written synopsis/arguments. After going through the record and proceedings of the case and synopsis, I have come to the following:--- ' This matter pertains to the year 1998 and since then matter is pending before various forums i,e, the Authority under Payment of Wages Act as well as before learned Sindh Labour Court and since 2006 the matter was pending before High Court of Sindh and after establishment of this Tribunal, this revision application has been received on transfer.
There is a very short point involved whether the provisions of Standing Orders Ordinance, 1968 are applicable for the purpose of determination of entitlement of applicant for the payment of gratuity.
Record reveals that the learned Authority had allowed the claim of the applicant regarding the gratuity two times and the learned Labour Court had remanded the matter one time and on the second time rejected the claim of the applicant on perusal of the evidence recorded by the learned Authority.
' The decision of the learned Authority is based on the evidence of one of the witnesses of the applicant who has given the number of workers in his evidence and the very important point in the evidence is to be reproduced hereunder:--- "The time when the said witness was working in the establishment, as he left the employment in September, 1983 so his evidence is to be considered." Following the same statement.
"At the time when I was working Two Iron Cutters, One Re-Rolling Machine, One Lathe Machine and One Furnace were settled at the respondent company. Again says that there were Two Furnaces for the other purposes... I left the company in September, 1983. I do not know the affairs of the company after September, 1983."
' Keeping in view of the above statement, if I go through the relevant provision of law i,e, Standing Order 1 (4)(c) and proviso to the said clause which reproduced hereunder:--- "Provided further that the provisions of Standing Order 10-B and 11, clauses ( 6 ) and (8) of Standing Order 12 and Standing Orders 15 shall not apply in the first instance, to any industrial establishment wherein not more than forty-nine persons were employed on any day during the preceding twelve months but Government may by notification in the official Gazette, extend all or any of the said provisions to any such industrial establishment or any class of such establishments."
' In view of the above relevant provision the evidence of the witness having no value, as because the same pertained to the past period and not to the relevant preceding twelve months, hence the applicant has failed to produce evidence to this effect. Whereas, I had also perused the evidence of the respondent which clearly established that at the relevant time i,e, for the years 1997 and 1998 less than 49 persons were employed, hence the applicant is not entitled for the gratuity according to law. I find no merits in the revision application, which is accordingly dismissed.
Revision application dismissed.
20l' PLC 318 [National Industrial Relations Commission] Before Bashir Ahmed Memon, Member PHARMATEC PAKISTAN (PVT.) LTD. through Factory Manager versus PHARMATEC WORKERS WELFARE UNION
(CBA) through General Secretary and others No,4A(172) of 2012-K/24(173)/2012-K, decided on 21st February, 2013.
Industrial Relations Act (X of 2012)--- ----S. 54(e)---National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln.32(2)(c)---Unfair labour practice---Ad interim stay order, grant of---Employer had alleged that union gave charter of demands, subsequently the notice of strike and thereafter the conciliation proceedings were continuing, but the union kept on raising demands above its charter of demands to pressurize the management to accept their demands; that under same tactics of pressurization, coercion and intimidation, union wrote a letter to S.H.O. Concerned making false allegations, which was an attempt to pressurize and intimidate the officers of the employer company to accept demands of the union to malign and spoil goodwill and public image of the company---Employer company also filed application for ad interim stay order---Said application was granted in favour of the employer and union was restrained from coercing, intimidating, pressurizing and compelling employer to accept their demands---Union being Collective Bargaining Agent,. No doubt had right to submit charter of demands, but the demands should be reasonable, feasible and practicable---Employer had made out a case of unfair labour practice against the union---Balance of convenience was in favour of the employer which would suffer irreparable loss and injury, if stay order granted to the employer was not confirmed---Ad interim stay order granted was confirmed, in circumstances. [pp. 319, 320, 3221 A, B, C, D & E S.M. Iqbal for Petitioner.
Khalil-ur-Rehman for Respondents.
BASHIR AHMED MEMON (MEMBER).--- This is application under Regulation 32(2)(c) of NIRC(P&F)
Regulations, 1973 filed by the petitioner along with petition under section. 54(e) of the IRA, 2012.
2. The brief facts as stated in the petition are that the petitioner company is a pharmaceutical manufacturing industry having its Regional/Branch offices at Multan, Rawalpindi and Peshawar, in more than one province therefore it is a trans-provincial organization. It has been stated that respondent No,1 union is provincially registered trade union and also having CBA certificate issued by Provincial Registrar of Trade Unions, Sindh and it is not an industry-wise trade union in view of the petitioner company. The petitioner company showing its status as trans-provincial organization has produced a copy of an order dated 28-9-2011 passed by Punjab Labour Court No,9, Multan in application filed by an employee of the Multan Regional Office (Annex.X). It is stated that respondent No,2 is Ex-worker of the company and his Application against his removal bearing No,102 of 2009 under section 41 of the IRA, 2008 is pending in the IIIrd Sindh Labour Court, Karachi and the respondents Nos.3 to 6 are Office-bearers of the union and also employed in the company.
It has been stated that in spite of the fact that the respondent No,1 union being an illegal body, the company has been compelled to deal with it and had entered in to various settlements/agreements only in order to maintain industrial peace and harmony but very recently the situation has been drastically changed and various cases have been filed against the petitioner management, industrial relations have been deliberately spoiled and senseless letters making false allegations are frequently written to harass the management and false allegations are being made about implementation of old previous expired agreements and settlements. The petitioner has produced certain letters as Annexs.A, B, C, D, E, F, G and H. It has been stated that the union gave its charter of demands on 1-1-2012 (Annex.I) and subsequently the notice of strike dated 16-7-2012 (Annex.H) and thereafter the conciliation proceedings are continuing but the union always kept on raising demands other and above its charter of demands to pressurize the management to accept their demands. It has been further stated that under the same tactics of pressurization, coercion and intimidation respondent No,3 wrote a letter dated 12-7-2012 to the S.H.O., SITE, making false allegations (Annex.K) with copies to other authorities, which is an attempt to pressurize and intimidate the officers of the company to accept demands of the union to malign and spoil goodwill and public image of the petitioner company. Accordingly show cause notice dated 18-7-2012 (Annex.L) has been issued to respondent No,3. The reply of respondent No,3 dated 20-7-2012 (Annex.M) was not found satisfactory, therefore an inquiry letter dated 6-8-2012 (Annex.N) has been issued and on the request of respondent No,3 the inquiry date was extended (Annex.0). It has been stated 'that planned campaign on false allegations against the Enquiry Officer has been started taking false objections against him and respondents Nos.2 to 6 in various meetings while attending the conciliation meeting repeatedly demanded the acceptance of demands of the union and to withdraw the show cause notice issued to respondent No,3 and have threatened to repeat the acts of unfair labour practice and strike will be staged to compel the management. It has been stated that the petitioner management also apprehend that acts of unfair labour practice would be resorted by the respondents by not allowing the management to complete the domestic inquiry and disciplinary proceedings against respondent No,3 as per law, hence the petitioner management has prayed for declaring the registration/CBA certificates issued by learned RTU, Sindh as illegal and in violation of the law as only industry-wise trade union is to be formed having workers employed in trans-provincial establishment. It is further prayed to hold and declare the conduct of respondents Nos.2 to 6 in violation of provisions of IRA, 2008 and IRA, 2012 and illegal and constitutes acts of unfair labour practice. It is also prayed that using pressure, coercion, intimidation to compel the petitioner management to accept demands of the union and to withdraw the show-cause notice dated 18-7-2012 issued to respondent No,3 and not allowing to complete the domestic inquiry as per law, are illegal and in violation of provisions of IRA, 2008 and IRA, 2012 and The Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.
3. On admitting the petition ad-interim stay order was grated in favour of the petitioner and respondents were restrained from coercing, intimating, pressure, compelling the petitioner to accept their demands to withdraw the show cause notice dated 18-7-2012 issued to respondent No,3 and not allowing to complete the domestic inquiry against him and using threats of staging sudden strike if their demands are not accepted and to conduct their affairs in a manner calculated to avoid occurrence of unfair labour practice.
4. Respondents were served and one Muhammad Ejaz Karim has filed his comments and counter affidavit, whereas rest of the respondents have not filed their comments etc.
5. I have heard arguments of Mr. S.M. Iqbal, learned counsel 'appearing on behalf of petitioner as well as Mr. Khalil-ur-Rehman, Labour Representative appearing on behalf of the respondents.
6. Mr. S.M. Iqbal, learned counsel appearing for the petitioner argued that he has produced the documentary evidence as Annex.G to Annex.N showing that the petitioner management is doing its business legally as per provisions of IRA, 2008 and IRA, 2012 and it has branches at Multan, Peshawar and Rawapindi and thus it is a trans-provincial organization and in support of his such contention he has produced copy of order dated 28-9-2011 passed by learned Punjab Labour Court, Multan as Annex.X. It is argued that the respondent No,1, which is an illegal body because it is not registered as an industry-wise trade union has not been issued CBA- certificate by learned Registrar, NIRC, as such it has no character of representing the workers in the petitioner management. However since it was CBA before promulgation of IRA, 2012 and it has also signed different settlement with the management, therefore the petitioner only in order keep industrial peace and harmony is allowing respondent No,1 union to represent the workers. It is argued that on the charter of demands dated 1-1-2012 bilateral negotiations are pending before Conciliator but during the meetings before Conciliator, the respondent union is always adopting the negative attitude in order to compel the petitioner management to accept their illegal demands. It is also argued that in order to coerce, pressurize and intimidate the petitioner management, the respondent No,3 has written a letter to the S.H.O., SITE, Karachi dated 12-7-2012 that he has received a call on his mobile phone where some one speaking in Pashto has threatened him to leave the Presidentship of the union and also to arrange for Rs,1 lac failing which he will face dire consequences. It was argued that in the entire officials of the management no one is Pashto speaking but in his application to the S.H.O. Allegations have been levelled against the management and M.D. Dr. Shahida Qaiser, I.R. Manager Syed Adnan All Trimizi, Factory Manager S.M. Abu Saghir, G.M. Finance Farrukh Hussain and HR Officer KhurshidAlam have been held responsible of the threats issued to him. It is argued that it is clear case of pressurization, coercion and intimidation against the management officials only to accept the illegal demands as one of the illegal demand raised by the respondents is to withdraw show cause notice and inquiry proceedings against Ameer Rawan, respondent No,3. It is further contended that during the pendency of conciliation proceedings before the Conciliator threats were issued to the management, it is why the petitioner has filed the present petition before this Bench of Commission for their safeguard and unless the respondents are restrained from committing unfair labour practice, the officials of the management will suffer irreparable loss and injury.
7. On the other hand Mr.Khalil-ur-Rehman, Labour Representative appearing on behalf of the respondents while arguing the case contended that a case for an amount of Rs,2 millions has been filed against the President of the union and charter of demands is pending before Conciliator and IRA, 2012 provides that during the pendency of charter of demands, there shall be no termination or removal of any office-bearer of the union. It is argued that the petitioner has failed to produce any documentary proof that it has registration of firm in other provinces of the country, therefore it cannot raise objection upon the status of respondent No,1 union, which is registered with RTU, Sindh and is legally constituted body of the workers employed in petitioner establishment.
8. I have considered the arguments and have gone through the material placed on record.
9. No doubt the respondent No,1 union has submitted charter of demands on 1-1-2012 and admittedly the conciliation talks are going on and since the talks have not been completed/finalized, it is why the petitioner management has approached this Bench of Commission for safeguard of the officials of the management.
10. It will be worth to mention here that I have perused the charter of demands submitted by respondent union (Annex.I) and am compelled to say that it would have been better than instead of raising 60 demands the respondent union should have only raised one demand that the management shall transfer the entire factory in the name of respondent No,1 union because very unreasonable and illegal demands have been made and it is why the talks on these demands have not been completed during the last one year.
11. No doubt a CBA has right to submit charter of demands but the ID demands should be reasonable, feasible and practicable.
12. So far the allegation that a case of Rs,2 millions has been filed against President of the union, no any documentary proof has been produced. It was just alleged to impress the court for seeking sympathy. The charter of demands speaks about the attitude of the respondents towards the management, therefore respondent No,1 is advised to come forward with genuine and practicable demands, which shall be acceptable fairly to the management.
In view of above facts and circumstances I am of the view that the petitioner has made out a case of unfair labour practice against the respondents. The balance of convenience is in favour of petitioner E management and they will suffer irreparable loss and injury if the stay order is not confirmed. Accordingly while confirming the interim stay order dated 13-8-2011 granted by this Bench of Commission I dispose of application under Regulation 32(2)(C) of NIRC(P&F) Regulations, 1973. However the Conciliator is required to complete the conciliation proceedings as early as possible under intimation to this Bench of Commission. Put off to 6-3-2013 for filing affidavit-in- evidence by the petitioner.
Ad interim stay .