' This order will dispose of Application under Regulation 32(2)(c) of N.I.R.C. (P&F) Regulations, 1973, filled by Mr. Shafique Qureshi, Advocate for applicants, supported by affidavit of Khan Bahader, General Secretary of Singer Industries Labour Union C.B.A., to restrain the respondents and the persons claiming through or under them from terminating, retrenching or dismissing or lock out, gate stop, lay off and transfer the applicants Nos. 1 to 25 from the employment and altering the terms and conditions of employment to the detriment of the applicants and to restrain the respondents from introducing the contract system of employment in the Foundry Department.
2. The interim prohibitory order was passed on 27-12-1997. Counter affidavit has been filed by the respondents and rejoinder has been filed by applicant Muhammad Afraz.
3. Heard Mr. Shafique Qureshi learned Advocate for applicants and Mr. Mehmood Abdul Ghani learned Advocate for respondents.
4. Mr. Shafique Qureshi, learned Advocate for applicant has contended that initially 700 workers were employed by respondents and by now strength of the workers has been reduced to 170. The respondent is multinational company and it manufactures sewing machines, refrigerators, washing machines, T.V. Sets and geezers and spare parts. The respondents earn huge profits, but pay less wages to the workers. Settlement has been signed by the C.B.A. And the management, which is to continue up to 31-12-1998 and para. No,2 of the settlement will show that basic pay scale of the workers is less. He has contended that the respondents have removed permanent workers and are employing casual and temporary workers and due to trade union activities of the applicant, the respondents now intend to close the foundry department, where the applicants are working and give the same on contract or purchase the parts manufactured in the Foundry Department, of inferior 'quality from the local market and use the same in sewing machines to make more profit and cause irreparable loss to the applicants by removing them from service. He has contended that the applicants have prima facie case and also balance of convenience in their favour and in case the interim order dated 27-12-1997 is not confirmed, the applicants will suffer irreparable loss.. In support of his contention Mr. Shafique Qureshi, learned Advocate for applicants has placed his reliance on decision of Full Bench of in case of General Secretary, Pak Saudi Fertilizers Bagging and Loading Contractors Mazdoor Union v. Pak-Saudi Fertilizers Ltd., Mirpur Mathelo District Sukkur and others reported in 1993 PLC 937, judgment of Division Bench of Honourable Karachi High Court in case of Messrs National Cement Industries Limited v. National Industrial Relations Commission, Islamabad and another reported in 1986 PLC 105, decision of Member, N.I.R.C. In case of Muhammad Nawaz and 4 others v. Messrs Daelim Industrial Co. Limited, Hub River Power Project through General Manager and 3 others reported in 1996 PLC 97, decision of Member, N.I.R.C. In case of Abdul Aziz v. Messrs B.R. Herman & Mohatta Ltd. And another reported in 1980 PLC 205 and unreported Full Bench decision in case of Plastic rafters Labor Union, Karachi through its General Secretary Muhammad Ali and others v. M/s. Plastic rafters (Pvt.) Limited through its Managing Director in Appeal No, 12(112) of 1991.
5. Mr. Mehmood Abdul Ghani, learned Advocate for respondents has contended that the application filed by 25 applicants is not signed by them, but it is signed by General Secretary, as such it is not maintainable, Moreover the C.B.A. Can file the application only to enforce its own rights guaranteed and secured to it by or under any law, award or settlement, but not for the individual workers. Besides these legal objections, on merits he has contended that the respondents employer possesses the legal right to reorganise its establishment, so as to run its profitably. He has contended that sale of sewing machines of respondents has decreased, which has been mentioned in para. 1(b) of the written statement. He has contended that arm and bed are manufactured in Foundry Department and it costs Rs,441.21 per unit to the respondents when in the local market the said imported unit is available in Rs,306.2 per unit and in case this arm and bed unit it purchased by the respondents locally manufactured outside the factory it costs Rs,264 per unit, which is not low in quality-wise, as such the respondent intends to close Foundry Department and purchase arm and bed from outside to lessen the cost and earn more profit. The respondent has right to reorganize its establishment and even retrench or give on contract any of its department to run it profitably and co-employer can continue with the manufacturing of the product by suffering losses. He has contended that the respondents have never victimized any of the office-bearers or member of the union and the settlement has been signed on 21-7-1997 by the management and C.B.A. Giving the workers, wages and benefits more than other sewing machines companies in Pakistan. He has contended that in the reply/statement the respondent has given undertaking/assurance that the applicants Nos.1 to 25 after close of Foundry Department, will be absorbed in another department of the factory without affecting their financial emoluments, and in view of this assurance the petition itself has become infructuous. In support of his contention Mr. Mehmood Abdul Ghani, learned Advocate for respondent has placed his reliance on decision of Labour Appellate Tribunal Sindh in case of Regnis Employees Union, Karachi v. M/s. Regnis Pakistan Limited formerly Singer Sewing Machine Co. Karachi and another reported in 1997 PLC 237, order of Industrial Appellate Tribunal West Pakistan in case of Messrs Saifee Development Corporation Ltd., Karachi v. Irtamur Rehman reported in 1969 PLC 459, Decision of Labor Appellate Tribunal Sindh in case of Hazrat Imam and 3 others v. Messrs Star Mills Ltd., Karachi reported in 1989 PLC 88, judgment of Honorable Karachi High Court in case of United Woollen Mills Workers' Union v.
Presiding Officer, Labour Court No,III and another reported in 1988 PLC 564, decision of Labour Appellate Tribunal Sindh in case of Messrs Bayer Pharma Ltd. v. Mirza Hussain Akhtar reported in 1981 PLC 24. Judgment of Division Bench of Honourable Karachi High Court in case of Muhammad Serajuddin v. Labor Appellate Tribunal and another reported in 1983 PLC 1286, Full Bench Judgment of Honorable Supreme Court in case of Zeal Pak Cement Factory Ltd. Hyderabad v. (1) The Chairman, West Pakistan Industrial Co. (Pvt.) Lahore (2), The Secretary, Labour and Social Welfare Apartment, Government of West Pakistan, Lahore and (3) Tufail Muhammad, General Secretary, Zeal Pak Cement Factory Employees Union, Hyderabad reported in 1965 PLC 216, unreported order of Full Bench of N.I.R.C. In case of Lahore Cantt, Cooperative Housing Society Employees Association, Union Office, M.E. Branch, A-Block Water Bank LCCHS, Lahore through its President, Hidayatullah Khan v. Lahore Cantt. Cooperative Housing Society Limited, Lahore, through its Vice-Chairman in Appeal No,12(154) of 1992, unreported order of Full Bench of N.I.R.C. In case of Pakistan Agricultural Storage and Services Corporation Limited, Lahore through its General Manager (Admn) v. Mr. Masood Ahmed, Ex-Deputy Project Manager PASSCO in Appeal No,12(201) of 1996-L, unreported order of Full Bench of N.E.R.C. In case of Pakistan Peoples Workers Union Northern Areas Government Transpoo Corporation, Islamabad through its President and General Secretary v. Northern Area Government Transport Corporation through its Deputy Manager in Appeal No,12(99) of 1996, Division Bench Judgment of Honorable Madras High Court in case of Film Distributors Employees, Association v. Metro Golowyn Mayer (India) Ltd., Madras and others reported in 1962 PLC 515.
6. In reply to the contention raised by Mr. Mehmood Abdul Ghani, learned Advocate for the respondents, Mr. Shafique Qureshi, learned Advocate for applicants has contended that the assurance given by Mr. Mehmood Abdul Ghani, learned Advocate for respondents to employ the applicants Nos.1 to 25 after close of Foundry Department in another department, is mala fide and the applicants will also not get foundry allowance.
7. Mr. Mehmood Abdul Ghani, learned Advocate for respondents to this contention of Mr. Shafique Qureshi, learned Advocate for applicants has contended that the respondents' assurance under- taking is bona fide, and in case Mr. Shafique Qureshi, learned Advocate for the applicants contends that it is mala fide, then he withdraws the said assurance and commission may decide the stay application on merits and also to decide the issue of maintainability as preliminary issue.
8. I have considered the arguments advanced, by Mr. Shafique Qureshi, learned Advocate for applicants and Mr. Mehmood Abdul Ghani, learned Advocate for respondents and have gone through the case-law cited by both the learned Advocates for the parties.
9. At this stage, while deciding the stay application, I would not like to advert to the issue of maintainability, which can later be decided at the time of final disposal of the main petition. From the record it appears that so far the applicants have not produced the documentary evidence to show that they are Members of Singer Industries Labor Union, C.B.A. There is no any substantial evidence to show that at any time before, these applicants were victimized by the respondents for their trade union activities. There are even no specific instances so far produced by the applicants on record to show that these were trade union activities of the applicants, which has caused annoyance to the respondents, so that the respondents are now intending to close down foundry department. There is even no documentary evidence at present to show that the respondents have ever retrenched the workers in contravention of provisions of Labor Laws. The burden to prove mala fide and acts of unfair labour practice lies upon the applicants and at present there is no any such material to show these allegations as contained in the application. Re-organization is right of the employer till it is tainted with malice or there is any element of unfair labor practice in doing so.
The respondents categorically have stated in reply statement that their sale has decreased and arm and bed unit, which they manufacture in. Foundry department cost them Rs,441.21 per unit, which imported is available in Rs,306.2 and locally manufactured outside the factory premises in Rs,264 per unit, as such the respondents want to purchase the same from local market to use the same in sewing machines, which will not make quality of sewing machines low, because the respondent's company being multinational is conscious to maintain its quality. The respondent in reply statement has given under-taking/assurance that after close of foundry department, the applicants working in Foundry Department will be absorbed in another department without affecting their financial emoluments and there appears no reason to doubt bona fide of the respondents in giving these assurance, as such employment of the applicants Nos.1 to 25 is not being effected by closing the foundry department, as such the applicants Nos.1 to 25 are not likely to suffer any irreparable loss, whereas the respondents will suffer irreparable loss if they are asked to continue to run the foundry department by incurring the loss by way of grant of prohibitory order.
' In the light of aforesaid reasons, I do not find that the applicants have any prima facie case and balance of convenience in their favor or they are to suffer any irreparable loss, as such the application under Regulation 32(2)(c) of N.I.R.C. (P&F) Regulations, 1973 for interim prohibitory order is hereby dismissed, and the interim prohibitory order granted on 27-12-1997 stands recalled. To come up. On 20-2-1998 for filing affidavit-in-evidence by the applicants.
' Announced in open Court.
' Given under my hand and seal of the Commission this 9th day of February, 1998.