' BASHIR AHMED MEMON (MEMBER).--- This is an application under Regulation 32(2)(c) of NIRC (P&F)
Regulations, 1973 which has been filed by the petitioner union while filing the petition under section 25(8)(g) of the IRA, 2008.
2. It has been stated by the petitioner that it is the industry-wise trade union registered with NIRC and is collective bargaining agent in respect of respondent No,2 establishment vide Annexs.A/1 and A/2. It has been stated by the petitioner that it extended membership towards employees of respondent No,3 establishment in accordance with constitution in the month of January, 2011 and the same has been submitted to the learned RITU for approval and thousands of poor persons joined the petitioner union and have obtained the membership of the petitioner union. Copy of letter addressed to the learned RITU has been produced as Annex.A/3 and presently 598 employees of respondents Nos.2 and 511 employees of respondent No,3 are members of petitioner union and such membership list has been filed as Annexs.A/4 and A/5 respectively. It has been further stated by the petitioner that in the month of March, 2006 respondent No,1 retrenched the employees who are now employees of respondents Nos.2 and 3 and established respondents Nos.2 and 3 as independent establishments and at the time of establishing the respondents Nos.2 and 3 as independent establishments all the funds of the retrenched employees were transferred by respondent. No,1 to respondents Nos.2 and 3 and services of those retrenched employees were rendered to respondents Nos.2 and 3 through a contract agreement for the period of 60 months and the respondent No,1 establishment has 51% shares in the establishments of respondents Nos.2 and 3.1t is further stated that the petitioner union being CBA served notice in accordance with law in terms of section 42(1) of I.R.A., 2008 upon respondent No,2 in respect of charter of demands for the year 2009-2010 on 15-1-2009 and after receipt of charter of demands, the respondent No,2 wrote letter dated 16-1-2009 to the petitioner union inviting bilateral meeting on 22-1-2009 but on 22-1-2009 they only formally met without discussing the charter of demands. Again petitioner union served a letter in terms of charter of demands upon respondent No,2, that notice was replied vide letter dated 11-3-2009 and subsequently a meeting was fixed on 25-3-2009 but respondent No,2 intentionally and deliberately neither resolved the industrial dispute nor respond the same positively and ultimately the petitioner union served notice of strike in terms of section 42(3) of I.R.A., 2008 on 12-11-2009 and then the Federal Conciliator intervened in the matter and called joint meeting for conciliation for amicably settling the industrial dispute and there has been so many meetings before the Federal Conciliator with effect from 25-3-2009 to 30-6-2010 but respondent No,2 deliberately and intentionally is not resolving the industrial dispute and is trying to delay the same. Thereafter on 30-6-2010 the Federal Conciliator failed the conciliation proceedings as such the petitioner union filed industrial dispute bearing Case No,9(2) of 2010 before this Commission and this Bench of Commission has passed award vide order dated 5-1-2011, copy whereof is annexed as Annex.A/7. It has been stated that respondent No,2 malafidely and intentionally is neither settling the industrial dispute nor increasing the 20% increase allowed by this Bench of Commission but has filed constitutional petition before the honourable High Court of Sindh. It has been further stated that all the employees of respondents Nos.2 and 3 are Ex-employees of Messrs Habib Bank Limited, respondent No,1 and respondents Nos.2 and 3 have engaged the services of Ex-employees in terms of agreement executed between respondents Nos.2 and 3. It is stated that respondents establishments are increasing the monthly salaries of the management's staff every year but intentionally and deliberately have neither increased the monthly salaries of poor employees nor have' provided other benefits/facilities as provided under the law. It has been stated that after passing of order by this Bench of Commission regarding increase of 20% the respondent establishments started harassments, victimization against the office-bearers and members of the petitioner union due to their trade union activities and the management of respondents particularly respondent No,1 called the office-bearers of petitioner union and threatened them for withdrawal of case and fresh charter of demands for the years 2010-2011 otherwise the contract of respondents Nos.2 and 3 will not be extended and respondent No,1 has verbally issued direction to the management, of respondents Nos.2 and 3 that services of office- bearers and members shall be terminated / retrenched forthwith. Accordingly it has been prayed that:---
(i) To restrain the respondents their officers/persons connected with them directly or indirectly from committing further unfair labour practice including dismissal, discharge, removal, retrenchment and termination, or any act/action which adversely affect the terms and conditions of the employment of the office bearers /members of the petitioner CBA union whose names are shown as per Annexs.A/4 and A/4 till final disposal of the main case in the interest of justice.
(ii) To restrain the respondent No,1 not to discontinue the contract agreement with respondents Nos.2 and 3, in which the services of the office-bearers/members of the petitioner CBA union has been dispensed.
(iii) To direct the respondents not to commit further any steps /actions which are calculated as unfair labour practice in terms of section 17 of the Industrial Relations Act, 2008.
(iv) To pass any other order/orders or directions in the favour of the applicants as deem fit and necessary in the interest of justice."
3. On admitting the petition interim stay order was granted and notice was sent to the respondents. The respondents have filed their comments and preliminary legal objections and counter affidavit denying vehemently the allegations made by the petitioner. It has been vehemently denied that respondents Nos.2 and 3 are sister concern organizations of respondent No,
1. In this respect the respondent No,1 has produced the documents from Securities Exchange Commission of Pakistan (SECP) to prove the Directorship and pattern of shareholding in respondent No,2 to prove that none of the officers of respondent No,1 is Director or shareholder of respondent No,2, Form 29 showing particulars of Directors and other officers, Form 205 and Form A under section 156, of respondents Nos.2 and 3 separately are filed as Annexs.R/4 and R/5 respectively. It has been denied by respondent No,1 that it is the employer of members of petitioner union nor the petitioner union is registered and certified as CBA in respondent No,1 establishment, as such respondent No,1 has been incorrectly arrayed as party. The petitioner has impleaded the establishment where they claim to have been registered separately as respondents Nos.2 and 3.
The respondent No,1 has separate trade union registered in its establishment and lastly Habib Bank Limited Workers Front was certified as CBA by the Registrar of Industry-wise Trade Unions with whom respondent No,1 has entered in to settlement, copy of settlement has been produced as Annex. R/1.
4. Respondent No,2 in its legal objections and comments has stated that petitioner union is registered and certified in respect of respondent No,2 and legally cannot make members/represents the workers employed in another establishment which is very separate and independent company incorporated under the provisions of Companies Ordinance, 1984. It has been stated that the proposed amendment made in the constitution/extension of membership is itself against the basic object of the constitution which has neither been approved nor the proposed amendment is in accordance with law and even otherwise such approval, if granted would be against the provisions of I.R.A., 2008, as such instant petition is not maintainable and is liable to be dismissed. It has been stated that agreement between two legal entities/companies, H.B.L. respondent No,1 and C.S.L., respondent No,2 cannot be challenged and or to make subject matter of this case before this Bench of Commission under' section 25(8)(g) of the I.R.A., 2008. It has been stated that the petitioner union cannot legally espouse the cause of individual workers and if any worker is aggrieved with any action of respondent No,2 or apprehends any act of unfair labour practice, he can directly file an application before this Bench of Commission. Only bald, vague and general allegations has been made that the management has started harassment and victimization against the office-bearers and members of the trade union.
5. In their legal objections and comments respondent No,3 denied the allegations of unfair labour practice and very clearly stated that petitioner union is registered and certified only in respect of respondent No,2 establishment and legally it cannot make members or represents the workers employed in another establishment viz. Respondent No,3, which is separate independent company and the proposed amendment made in constitution/extension of membership has neither been approved by NIRC nor the proposed amendment is in accordance with law, as such the present petition under section 25(8)(g) of the I.R.A., 2008 is not maintainable. It has been stated that the agreement between two establishments i,e, respondent No,1 and respondent No,3 cannot be challenged or to make subject matter of the case before this Bench of Commission and legally the petitioner cannot espouse the cause of individual workers who even otherwise have not become member of petitioner union and petitioner cannot represent the workers employed in respondent No,3 establishment. It has been stated that Constitutional Petition No,294 of 2011 was filed by respondent No,2 before honourable High Court of Sindh challenging the status of petitioner union and honourable High Court vide order dated 2-2-2011 has already suspended the operation of the order passed by this Bench of Commission and since the issue as to the status of petitioner union is sub judice before the honourable High Court therefore the petitioner even otherwise is not competent to file the present petition. It has been clearly stated that the petitioner union was registered on 5-1-2011 and was certified as CBA with effect from 4-1-2011 in respect of respondent No,2 establishment but it has no relation or any nexus with respondent No,3 establishment and legally it cannot extend its membership to respondent No,3 which is separate independent legal entity and neither any amendment in the constitution is legal nor the Registrar is legally competent to approve any amendment in the constitution of the union. Accordingly the prayer for dismissal of not only the stay application but main petition has been prayed.
6. I have heard arguments of learned counsel appearing on behalf of the parties and have gone through the entire material placed on record.
7. The petitioner union in order to satisfy this Bench of Commission has only produced simple copy of letter dated 10-1-2011 addressed to the learned Chairman, NIRC regarding amendment in the constitution of the union regarding extension of membership but very surprisingly it is not clear under what mode of service this letter was dispatched as there is no acknowledgment etc. as such it cannot be considered that it has been dispatched to the learned Chairman, NIRC. Even otherwise the petitioner union has been registered in respect of establishment of respondent No,2 i,e, Messrs Collateral Services Limited and CBA certificate has been issued to it in respect of said establishment. There is no any provision of law under the I.R.A., 2008 that a union can extend its membership to another establishment. No doubt some of the different unions can form a federation but no where it is provided that a trade union of workmen of a particular establishment can extend its membership to employees of another establishment. The petitioner has not been able to produce any documentary evidence regarding connection of respondent No,2 establishment with respondents Nos.1 and 3. On the contrary respondent No,1 has produced documents from Securities and Exchange Commission of Pakistan (SECP) where none of the director of F respondent No,1 is the director or shareholder of respondent No,2.
8. The petitioner union on 5-5-2011 along with statement has filed a pro forma of resignation and pro forma of another letter and has claimed that respondent No,1 has forced the employees for tendering the resignation.
9. I have perused those documents. Annex. A/10 is a pro forma of resignation which is addressed to Manager Collateral Services Limited whereas another letter Annex. A/11 is letter offered to one Ashique Hussain of Multan and it also is not from respondent No,1 i,e, Messrs Habib Bank Limited. It is from one organization namely Professional Employers (Private) Limited and no where it is proved that this resignation has been tendered to the Habib Bank Limited, respondent No,1 or that fresh offer letter has been issued by respondent No,1 but since the petitioner is not registered for respondent No,1 establishment, as such there was no occasion for respondent No,1 to call the office-bearers and members of petitioner union and to threat them to withdraw the charter of demands but only the bald and vague allegations have been levelled by the petitioner union.
10. It has been held by our honourable High Court in its decision reported in 2005 PLC 142 that:-- "Registrar of Trade Union is not empowered to approve or accept any additional list of establishments, in absence of Registration of Trade Union for those establishments. It is all the more necessary, before seeking CBA status to get themselves registered for those establishments."
' It has been further held by the honourable High Court in its decision reported in 2005 PLC 142 that: -- "Constitution of Pakistan (1973), Art.199---Constitutional petition---Registration of Trade Union--- Cancellation of---Amendment in Constitution of Trade Union---Extension of membership---Claim to become Collective Bargaining Agent for other establishments as well---Requirements--- Petitioner union initially was registered for sixteen Jamadars and was certified as Collective Bargaining Agent as such---Subsequently petitioner brought amendment in its Constitution which was approved by the Registrar Trade Union---Petitioner through said amendment extended its membership to other establishment including the respondents---Petitioner while submitting amended Constitution before Registrar Trade Union had no annexed list of extended establishments including the respondents---Petitioner claimed that it should be declared Collective Bargaining Agent for extended establishment also---Validity---Trade Union could only be certified as Collective Bargaining Agent of an establishment for which it was registered and of no one else---Petitioner could not have amended its Constitution extending membership to establishment beyond sixteen Jamadars without first seeking registration of extended establishment under Ss.5 & 6 of Industrial Relations Ordinance, 1969---Amendment, if any, of the Constitution, was internal working of petitioner and it could not bypass provisions of law---Even if petitioner had annexed with his application for seeking approval of amendment in its Constitution list of additional establishments, registrar Trade Union was not empowered to approve or accept same in absence of registration of said additional establishment to that effect---If petitioner wanted to be(???) declared as Collective Bargaining Agent for additional establishment, it was incumbent upon it to first get it registered for those establishments and thereafter it could have sought certification of Collective Bargaining Agent in respect thereof."
'In view of above facts and circumstances I am of the considered opinion that no prima facie case of stay order against respondents Nos.1 and 3 has been made out. However admittedly the petitioner union is collective bargaining agent for the workmen employed by respondent No,2, as such the petitioner union has been able to prima facie establish a case of unfair labour practice against respondent No,2 establishment, therefore the interim stay order dated 9-2-2011 passed by this Bench of Commission is confirmed and respondent No,2 is restrained from taking an action adverse to the employment of petitioner's office-bearers and members and the petitioner is required to file affidavit-in-evidence. Put off to 8-6-2011 for filing affidavit-in-evidence by the petitioner.