' This is a petition under Order VII Rule 11, C.P.C. Filed by the respondents.
2. The petitioners allege that they are the office-bearers of Pakistan Cables Limited Employees Union (Registered). Their services are being terminated due to their trade union activities by respondent No, 2 of Pakistan Cables Limited, which is an establishment, having its Head Office at Karachi and employing 500 workers at Karachi, 15 at Lahore, four at Rawalpindi and three at Multan. Respondent No, 1 had been asking the petitioners to dissolve the Union and to discontinue their trade union activities but the petitioners resisted this demand, which ultimately resulted in threats to one of the petitioners who filed an application way back in 1987 before the NIRC in which a prohibitory order against the then Area Manager, Lahore of the respondents Muhammad Sabir was granted on 14-7-1987 by a Bench of NIRC. It is further stated that the petitioners had been pressing for their residual demands which have not been implemented so far in their capacity as office-bearers before respondent No, 2 but he flared up and called the petitioners in his office on 27-7-1989 and threatened them with dire consequences if they did not dissolve the Union, they were asked to either resign or to leave the union but they refused. The Union and the petitioners also resisted respondent No, 2 when he harassed Muhammad Anwar Driver, which led to his further annoyance. Therefore, the respondent No, 2 terminated the services of the petitioners ostensibly on the basis of re-organisation of establishment and shrinkage of work but actually due to their trade union activities. The copies of their termination letters were also annexed by them with the petition and it is prayed that their termination from service vide orders dated 27-7-1989 passed by respondent No, 2 at the instance of respondent No, 1 may be set aside, being, vindicative malicious and having been passed due to trade union activities of the petitioner simply to pressurise them to give up their trade union activities in the organisation.
3. This petition alongwith the stay application was presented before the learned Member, Lahore on 2-8-1989 who was pleased to stop the operation of the termination order dated 27-7-1989 provided that the petitioners have not already handed over the charge. The application for vacation of stay was dismissed on 10-8-1989. The stay order was confirmed. After that the present application under Order 7 Rule 11, C.P.C. Read with section 151 was moved by respondents on 20-9- 1989.
4. The grounds taken by the counsel for the respondents in this case are that the application under section 22-A(8)(g) is not maintainable as the Hon'ble Commission has no jurisdiction to set aside the termination letters issued to petitioners on 27-7-1989, because the said termination orders had been issued under section 19 of the West Pakistan Shops and Establishments Ordinance, 1969 and section 25-A of 1969 was not applicable to the case. That since the authority under section 12 of the West Pakistan Shops and Establishments Ordinance, 1969 alone has jurisdiction to deal with the matters arising out of termination etc. Under the said Ordinance, the N.I.R.C. Had no jurisdiction to exercise the powers vested in the Shops and Establishments Authority under section 12 (ibid). The other argument was that the Commission has no jurisdiction to summon/implead respondent No, 1 as a party to this case as neither he has appointed the petitioners nor terminated the services of petitioners. Respondent No, 1 is permanently employed and performed his official duties at Karachi with effect from 1-6-1989. The Commission had no legal authority to entertain an application for the reinstatement of petitioners in the service of respondent No, 2 also for the same reason. It is further urged that the allegations of victimisation and being restrained from performing trade union activities are totally false and fabricated inasmuch as even after termination from service the petitioners could still continue their trade union activities, if any, as outsiders under section 7(1)(d) of I.R.O., 1969. The counsel further asserted that the strength of workers/employees of Pakistan Cables Limited, Area Office, Lahore was/is far less than 20 in number. The provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 are not applicable to respondent No,
2. He prayed that the application filed under section 22-A(8)(g) be dismissed being without jurisdiction. He placed a registration certificate of Pakistan Cables Limited from the Deputy Chief Inspector of Shops and Establishment, Lahore to show that the said establishment falls under the Shops and Establishments Act, 1969. Apart from this registration certificate, under the West Pakistan Shops and Commercial Establishment Ordinance, 1969, he also presented pay sheets of the 7 employees of Area office, Lahore from C to C.6, showing, firstly, that there are 7 employees in that shop and secondly that their pay sheets are prepared at Lahore. He has also presented Annexure-D, a letter to operate Bank Account at Grindlays Bank, Lahore. He has also presented Annexure C-1, being a settlement under the I.R.O., 1969 between the employer and the Union in which Riazul Haq, participated from Lahore and Shah Bazi, participated on behalf of the employer from Karachi. He further states that no one has been appointed in place of the petitioners. He further said that section 22-A(8)(g) of the I.R.O., 1969 does not envisage any protection for those terminated from service under section 19 of the Shops and Establishments Ordinance as held in PLC 1976 page 846.
The Commission ought to take up the question of its jurisdiction first, as laid down by the Hon'ble Supreme Court in number of cases such as 1973 SCM R 62 that a Tribunal's jurisdiction is determinable at commencement and not at the conclusion of proceedings. The objection that the respondent No, 2 was not empowered or did not have the authority to terminate the services of the petitioner is also liable to be dismissed because an employer includes a person incharge of a part of the establishment as held in PLD 1978 Kar.
649. The employer was also within his right to curtail his expenditure at any stage therefore, the petition was liable to be dismissed.
5. The admitted position, as emerged from the perusal of the submitted documents issued by the Company is that Pakistan Cables Ltd. Is a limited company having its Director and Chief Executive at Karachi and another Director and Company's Secretary also at Karachi. The Company has a Lahore Office, of which Mr. Riazul Haq is the Regional Manager. The Lahore Office employs 7 workers including the petitioners, Irfan Ahmad Qureshi, Muhammad Anwar and Muzammal Hussain who are respectively employed as Typist, Driver and Despatch Clerk. The Pay Bills of these employees are prepared at Lahore office. The Lahore office is registered as a "Shop" under the Shops and Establishments Ordinance, 1969. It has also been shown that the Karachi Office is remitting certain amounts to the Lahore office for expenditure. It is also the admitted position, from the documents produced by the Company, that in a settlement which subsisted upto 31-12-1989, Hamid Shahbazi, Personnel Manager of the Company posted at Karachi and Riazul Haq, Regional Manager of the Company at Lahore signed the settlement with the workers including the present petitioners Nos. 1 and 3. It has also been shown that the Director and Chief Executive of the Company had directed the Regional Manager on 20-7-1989 that " to economise the business operations and to curtail expenditure over there it is essential to indicate the re-organisational scheme. In order to achieve the above objectives it has become imperative to abolish some posts
6. As a result the posts of the three petitioners were directed to be abolished and the Regional Manager was directed to issue termination letters accordingly which were issued to all the three petitioners on the 27th July, 1989. Yet the Company urges that Lahore office is a separate establishment while Karachi office is separate. The petitioners urge that it is one establishment and as such the junior most workmen of the total establishment should be removed.
7. The main question therefore is, what is establishment. The learned counsel has pressed into service the definition of the word 'establishment' as given in Black's Law Dictionary, 5th Edition page
497. He has also drawn my attention to the provisions of section 2(j) of ,the West Pakistan Shops and Establishments Ordinance, 1969 in which an establishment means a shop, commercial establishment.
8. No reliance however, need be placed in this context on any dictionary including the Black's Law Dictionary because the term 'establishment' has been defined under I.R.O., 1969, which is as follows:- "Establishment" means any office, firm, industrial unit, undertaking, shop or premises in which workmen are employed for the purpose of carrying on any industry; and except in section 22EE, includes a collective bargaining unit, if any, constituted under that section in any establishment or group of establishments;"
9. The question however is whether the Regional Office of the Pakistan Cables Limited at Lahore is a separate establishment or a part of the establishment called Pakistan Cables Limited.
10. I have been shown the appointment letter issued to Irfan Ahmad Qureshi. This letter was signed by the Personnel Manager, Karachi and the address of the establishment is given as Pakistan Cables Limited B/21, SITE, Karachi. The term No, 13 of this appointment letter is reproduced below:- "You are given further to understand that you may be required to work in any establishment as and when required and that your services will be transferable at the discretion of the Man Bement to any other department of the Company or to any other location and on such transfer you will be entitled to only such allowances and benefits as are or may be applicable to other employees serving in the department concerned or the locations to which you are transferred".
11. The underscored sentence shows that the Company regards its area offices as establishments and its sections at the Head Office etc. As departments. It also shows that employees are under uniform control and can be transferred anywhere. The Appointing Authority is however one and that is the Personnel Manager, at Karachi. One of the admitted facts mentioned above is that the Regional Manager has been authorised to operate the Company's account and that money is sent from Karachi for expenses. Word, Regional Manager, itself shows that the Company is one establishment and Riazul Haq is its "Regional Manager". The association of Lahore and Karachi Managers in the Settlement process also shows that the Regional office of the Pakistan Cables Limited, Lahore is a part of the establishment. It is also urged by counsel for the petitioners Irfan Ahmed etc. That the company compiles one profit and loss account and that at Karachi Head office. No separate accounts are maintained for Lahore Area for the purpose of Income-tax. This is not denied in arguments. It is further urged that the applications of subordinate staff at Lahore are also forwarded to the Karachi office for decisions. The income-tax deductions in respect of wages of Lahore employees are also made by the Karachi office and I have been shown the copies of the income-tax returns of Muzammal Hussain who was also appointed by Karachi Office. In his Income-tax return, even when he was posted at Lahore, the address of the employer has been given as Pakistan Cables Limited B/21, SITE, Karachi. This return is for 1989-90. Further the Pakistan Cables Limited itself has been treating the office at Lahore as the Area Office or the Regional Office of the Establishment.
12. In view of this overwhelming evidence, I have no hesitation to arrive at the conclusion that the Area Office at Lahore is a part of the establishment called Pakistan Cables Limited, Karachi. The registration under the Shops Act is an incident of having an Area Office or premises at Lahore. It has nothing to do with the provisions of I.R.O., 1969. Shop registration certificate is issued by the Deputy Chief Inspector Shops for any shop or premises where commerce, trade or business is being carried on. The Deputy Chief Inspector is not concerned whether it is a part of a big establishment or an establishment in itself. He also does not register the employees but the premises. He is not concerned if the workmen working in the shop are governed by the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 which can also extend side by side with the West Pakistan Shops and Establishments Ordinance, 1969. It has got nothing to do with the status of Irfan Ahmed, Muhammad Anwar and Muzammal Hussain as to whether they are the workers of Pakistan Cables Ltd. Karachi or whether the Standing Orders Ordinance (ibid) is applicable to them or not. The plea that since Regional Office at Lahore is registered under the Shops Act, therefore, the conditions of service of these workmen posted at Lahore will be governed under the Shops Act is thus repelled also on the ground that the appointment of these workers had been made by the Pakistan Cables Limited, Karachi which employs more than 500 workers. Their seniority is to be combined with those of the workers of the total establishment of Pakistan Cables Ltd. Head Office, at Karachi and if their services are to be retrenched then the same will have to be retrenched in accordance with the provisions of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 on the basis of principle of "last in first out".
13. It is admitted that two of the three petitioners signed the memo, of settlement on behalf of workers. The effect of this well thought out retrenchment of 3 workers at Lahore would be to throw these trade union officers and activists out of employment. The counsel for the Company states that it would not affect their trade union activities as they would still be able to carry on the same as outsiders. This argument is fallacious. Not only they but the entire body of workers would be terrified if these trade union officers and activists are allowed to be removed from the establishment against the provisions of law. So far as the matter of victimisation for trade union activities is concerned, I have seen the copy of the note from Management office relating to the establishment of union referred by Mr. Aziz Ahmad, learned Member-I (as he then was) in his order dated 14-7-1987, in case No, 4-A(129)87-L. Strangely enough the plan given by Mr. Muhammad Sabir, the then Area Manager to "deal with the union" seems to be unfolding now, and these officers are now being removed due to their trade union activities.
14. I, therefore, dismiss the instant petition made under Order VII Rule 11, C.P.C. Being of no substance.