Through this single order I intend to decide this petition as well as connected petitions bearing W.P. Nos.
27185/2015, 27186/2015, 28276/2015, 28290/2015, 28597/2015, 28599/2015, 28600/2015 and 28601/2015 having commonality of law and facts inasmuch in all these petitions the Pakistan Telecommunication Company (hereinafter to be referred as the Company) has assailed order dated 12.05.2015 passed by the learned Full Bench of the National Industrial Relations Commission (hereinafter to be referred as the Commission) whereby its appeals, filed against dif ferent orders passed by the learned Single Member of the Commission, were dismissed.
2. Unnecessary details apart, the private respondents in these petitions filed petitions in terms of section 49(4)(c) of the National Industrial Relations Ordinance, 2002 (hereinafter to be referred as IRO 2002) putting a challenge to Voluntary Separation Scheme (VSS) dated 15.11.2007. The learned Single Member of the Commission, vide order dated 12.09.2009, accepted the said petitions against which the appeals filed by the Company were dismissed by the learned Full Bench of the Commission, vide order dated 12.05.2015; hence these petitions.
3. While opening his arguments, learned counsel representing the Company , submits that after exercising their option for VSS the private respondents were estopped to file any proceedings before the Commission; that as the private respondents were no more in service, at the time of filing Grievance Petitions before the Commission, the same were not maintainable; that according to Regulation No.32 of the National Industrial Relations Commission (Procedure and Functions) Regulations, 1973 (hereinafter to be referred as the Regulations 1973), jurisdiction of the Commission was only attracted when the proceedings were covered under section 25-A, 34 or section 23 of the Industrial Relations Ordinance, 1969 (hereinafter to be referred as IRO 1969); that a cursory glance over the petitions filed by the private respondents shows that they were not exact about the name of their respective Unions nor they pin-pointed any unfair labour practice on the part of the company; that at the relevant time private respondents could approach the Labour Court against termination of their services; that bona-fide on the part of the company is manifest from the fact that after introduction of VSS total 29,999 employees opted for that out of them 29,876 employees accepted their emoluments without any reservation; that the private respondents approached the Islamabad High Court against an interim order whereupon the company was directed to pay their monthly salaries in advance with the condition that the same would be subject to adjustment according to the final verdict of the Commission. In support of his contentions learned counsel has relied upon the cases reported as Mustehkum Cement Limited through M.D. V. Abdul Rashid and others (1998 PLC 172), Trustees of the Port of Karachi v.
Muhammad Saleem (1994 SCMR 2213), order dated 30.06.2015 passed by the apex Court of the country in Civil Petition No.634/2015 titled Muslim Commercial Bank Ltd. v. Tariq Zameer Siddiqui and others , Sohaib Shaukat and others v. Labour Department and others (2010 PLC 265), m/S Coca Cola Beverage Pakistan Limited through Authorized Officer/Industrial Relations Manager v. Registrar Trade Unions Sindh and 3 others (2010 PLC 48), Khuda Bux Baluch v. M. Atiqullah and others (1990 PLC 599), General Manager (Administration), Punjab Industrial Development Board, Lahore and another v. National Industrial Relations Commission and another (1987 PLC 129), Lever Brothers (Pakistan) Ltd. v. Senior Member , National Industrial Relations Commission and another (PLD 1986 Lahore 90), National Bank of Pakistan v. Senior Member , N.I.R.C. and another (1986 PLC 985), Muhammad Ali and others v. Sind Labour Court No.1, Karachi and others (1984 PLC 1645 ) and Pakistan Railways v. Junior Labour Court No.V and others (1979 PLC 320 ).
4. Conversely , learned counsel representing the private respondents, while defend ing the impugned verdicts of the fora below submits that as the Regulations 1973 have already been repealed no reliance can be placed on them; that according to Regulation No.32(2), a grievance petition before NIRC was maintainable in respect of any future unfair labour practice and even in IRA 2012 section 54 deals with similar situation; that as private respondents were being paid salary at the time of pendency of proceedings before NIRC their petitions were maintainable and no exception can be taken against verdicts of the fora below on the ground that after termination of their services the private respondents could not approach the Commission; that as VSS was not voluntary rather employees were compelled to opt for the same while compelling them on one pretext or the other , same was rightly challenged by the private respondents before the Comm ission; that the Company , with a view to penalize the employees and to have maximum benefit from VSS introduced various categories of employees inasmuch as some were held surplus and others were declared "Not Needed" etc.; that as not a single penny was transferred in the account of the private respondents they were competent enough to agitate their grievance before the Commission.
5. Learned counsel for the petitioner , while exercising his right of rebuttal, has referred to cross-examination conducted on the private respondents and submits that as they themselves admitted that their services were terminated they could not claim anything on the strength of order passed by the Islamabad High Court; that as salary being paid to the private respondents was subject to final outcome of the matter before the Commission said fact does not lend any support to the plea of the private respondents that they were in service at the time of institution of proceedings before the Com mission; that according to section 88(b) of IRA 2012 the rules have been protected and in terms of section 2(46) of the General Clauses Act, 1897 Regula tions fall within the category of rules, thus, the Regulations of 1973 are still operative.
6. I have heard learned counsel for the parties at considerable length and have also gone through the documents annexed with these petitions as well as the case-law cited at the bar .
7. Firstly taking up the most pivotal question regarding maintainability of the petitions filed by the private respondents before the Commission, I am of the view that as the same were filed in terms of IRO, 2002, the definition of worker/workman given in the said statute is of paramount consideration. The said terms has been defined under section 2(xxx) of the said Ordinance in the following manner: - "worker" and "workman" means any and all persons not falling within the definition of employer who is employed in an establishment or industry for remuneration or reward either directly or through a contractor, whether the terms of employment be express or implied, and for the purpose of any proceeding under this Ordinance in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid-off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay-off or removal has led to that dispute but does not include any person who is employed mainly in a managerial or administrative capacity." (emphasis provided).
According to the afore-quoted definition clause, a worker/workman could approach NIRC when his services were dispensed with in either shape as a result of industrial dispute. Insofar as case in hand is concerned, the private respondents put a challenge to VSS introduced by the department for voluntary separation. In this backdrop, termination of private respondents cannot be considered as a result of any industrial dispute especially when they failed to specify the industrial dispute which resulted into termination of their services.
8. It is imperative to note that on the one hand the private respondents have taken plea that as they had been receiving salaries from the Company they could not be termed as terminated employees but on the other while appearing in the witness box, during the course of cross-examination, they admitted that their services were terminated. Even otherwise, the order passed by Islamabad High Court renders it crystal clear that the amount directed to be paid by the Company to the private respondents, being in the shape of advance, was subject to the final outcome of the matter pending before the Commission.
9. It is also important to observe over here that during the course of cross-examination the private respondents, while appearing in the witness box, admitted that prior to filing of their Grievanc e Petitions the matter was also agitated by the Union regarding validity of VSS which was dismissed. In the wake of such clear cut stance of the private respondents, the Commission was supposed to be more vigilant as after dismissal of the petition filed by the Union how the matter agitated by the individuals could be blessed with acceptance.
10. Learned counsel representing private respondents has taken unequivocal stance that as the Regulations 1973 were formulated pursuant to IRO 1969, after repeal of the said Ordinance same are no more alive. The said plea cannot be given any weightage for the reason that in view of saving clause provided under section 88(b) of IRA 2012 the said Regulations cannot be considered as redundant. Moreover, when learned counsel representing private respondents is relying upon Regulation No.30(2) of the Regulations 1973 to argue that the petitions could be filed by the private respondents even in respect of a future unfair labour practice, he has no cheeks to maintain that after repeal of IRO 1969 the Regulations 1973 are no more in the field. If the said regulations were no more available, regulation No.32(2) cannot be revived in isolation.
11. It is admitted position that with a view to invoke the provisions of IRO 2002 it was incumbent upon the private respondents to establish unfair labour practice on the part of the Company . While filing their petitions before the Commission no specification regarding unfair labour practice was given by them meaning thereby that the same were filed on general grounds. As the Grievance Petitions were filed by the private respondents in terms of IRO 2002, the meaning of unfair labour practice is to be considered with specific reference to section 63 & 64 of the said Ordinance. As per section 63 ibid, when a penal order is passed agains t an employee for the reasons mentioned therein, the same amounts to unfair labour practice on the part of the employer . As far as the case in hand is concerned, when the private respondents failed to establish the industrial dispute which ultimately resulted into termination of their services, the jurisdiction of the Commission in their matter was totally barred.
12. Learned counsel for private respondents has vociferously argued that with a view to compel employees to opt for VSS the Company divided them under different categories. There is no cavil with the preposition that employees were grouped in different categories viz. "redundant" and "surplus" etc. but when there was no reference to said terms in VSS it was optional for the employees either to accept or to reject the same. As the private respondents exercised their option for VSS they could not agitate the matter before the Commission while retracting from their earlier option.
13. Undeniably , a serving employee or an employee whose services have been dispensed with as a result of an industrial dispute can only agitate his grievance before the Commission whereas the private respondents having been terminated from service did not fell within the definition of workman. The said fact escaped notice of the fora below while deciding the matter of the private respondents.
14. The prime ground urged by the private respondents in their petitions before the Commission was that with a view to deprive them from revised pay scales they were compelled to opt for VSS. In this regard, I am of the view that since VSS is silent about such element or the private respondents were not able to make out that prior to exercising option by them they were proceeded departmentally or any other action was taken against them.
15. For what has been discussed above, I have no doubt to hold that the Commission lacked jurisdiction in the matter of the private respondents and after exercising their option for VSS they were estopped to invoke the jurisdiction of the Commission especially when their services were terminated. Consequently , these petitions are allowed , and the orders impugned therein are set aside . Resultantly , the petitions filed by the private respondents before the Commission shall stand dismissed .