' This order will dispose of this application under Regulation 32(2)(c) of N.I.R.C. (P&F) Regulations, 1973 filed by Hashmi Can Company Employees' Union through its General Secretary supported by his affidavit with prayer to prohibit the respondents from continuing with the lay off of the workers declared from 31-10-1998 or to resort to any further lay off of the workers on the alleged grounds of financial losses and to further direct the respondents to pay full wages to the workers for the period from 31-10-1998 and to direct the respondents to refrain from committing the acts of unfair labour practice till the disposal of the main application.
2. On the same day this Bench of the Commission passed interim prohibitory order, dated 13-11- 1998 restraining the respondents from declaring fresh lay off of the workers after present lay off ends till the next date.
3. The respondents filed their objections and counter-affidavit on stay application denying all the allegations of unfair labour practice levelled against them by the applicant union and the applicants filed additive-in-rejoinder.
4. In the petition filed under section 22-A(8)(g) of the 1.0.R., 1969 by the Hashmi Can Co. Employees'
Union (CBA) it has been claimed that the respondent Hashmi Can Co. Ltd. Is amongst the leading industrial concerns in Pakistan and earned substantial profits during 1995, 1996 and 1997. It has been alleged that the management wants to reduce wages and benefits of workers and for this purpose have started pressuring the union to reduce wages, canteen subsidy, medical facilities and other benefits available to the workers under settlements, custom, practice and usage. The respondent management, it is further alleged is putting pressure upon the union to agree and to enter into a settlement for a large scale retrenchment of senior workman against the principle of last in first go. It has also been alleged that pressure is being exerted to agree to accept 10-C bonus at one month's basic pay instead of what is provided in law. It has been claimed that the management has effected lay-off of 50% workmen for 14 days vide notice, dated 31-10-1998 which is to be followed by lay-off of the remaining workers also for 14 days. It has been claimed the reasons assigned for is layoff are false and not covered by eventualities permissible in law. The respondent management was further reported to have already applied to the Labour Court under Standing Order 11-A of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 for permission to close down the factory. Apprehension of repudiation of unfair labour practice on the part of the management by way of lay-off and of closure has been alleged and a prayer has been made that the respondent be prohibited from taking recourse to lay-off by way of unfair labour practice and or to withhold half wages on the pretext of lay-off and not to commit further acts of unfair labour not to compel the union to agree to enter into any settlement to the disadvantage of workers. The petition is accompanied by a Miscellaneous Application under Regulation 32(2)(c) of N.I.R.C. (P&F) Regulations, 1973. Regulations, 1973 duly supported by an affidavit.
5. That, on the same day on 13-11-1998, this Bench passed an interim order restraining the respondent from declaring fresh lay-off of the workers after the present lay-off ended.
6. In response to the notice, the respondent filed legal objections and reply wherein they took the plea that the present petition under. Section 22-A(8)(g) of the I.R.O., 1969 filed by the union was not maintainable as the petition was to be dealt with in the manner laid down under section 34 of the I.R.O., 1969 and the union could only file application for the enforcement of its own rights and not the rights of the members of workers. The respondents claimed that the union could not file the present petition on behalf of the workers. It has further been claimed that provisions of section 22- A(8)(g) of the I.R.O., 1969 do not confer jurisdiction upon the N.I.R.C. To entertain any kind of grievance petition even though in lacks element of unfair labour practice. In this connection, it was contended that the present petition does not contain any element of unfair labour practice and further the prayer of the union for full payment of lay-off period is also outside the ambit of section 15 of the I.R.O., 1969. It is claimed that unfair labour practice-presupposes compelling or attempt - to compel the union to arrive at a settlement. Since no chart of demand has been served, question of compelling' respondent to enter into settlement with the respondent does not arise. Finally, the objection is that the prayer for interim prohibitory order and final prayer are more or less identical and, therefore, no relief by way of application under Regulation 32(2)(c) of N.I.R.C. (P&F)
Regulations, 1973 could be granted if it would result in the fatal relief to the workers. Another objection raised is that lay-off is recognized in terms of Standing Order 11 and any act undertaken by the employer in the discharge of his legal rights guaranteed to him cannot be construed as an act of unfair labour practice.
7. While justifying the lay-off, it has been contended by the respondent that the lay-off was necessitated as a result of negligible orders in business for the period July, 1998 onwords and reference to financial results for the accounting years, 1995, 1996 and 1997 were not relevant. It was claimed that since May, 1998, there has been economic problems which affected the business community. Restrictions were imposed upon importers to deposit 30% cash margin. The rate of US Dollar has also increased and commercial imports have been restricted in their productions. Due to non-availability of raw material, manufacturing business has been affected. The respondent company is engaged in the manufacture of Tin, Cans having Tin plates its raw material. The Oil Companies the plastic formulators etc. Major users of tin cans have shifted to plastic can.
Comparative statement of sales and tin plates consumption for the year 1997 and for the period July, 1998 onwards has been filed. The respondent has reportedly suffered a loss of Rs,7.540 million since July, 1998 and an unaudited profit and loss account for this period has been filed. In respect of increase of remuneration of chief executive, it was claimed that salary of chief executive which was fixed in 1981 was increased in 1996 after 15 years while during this period five settlements were concluded allowing sustainable benefits to the workers.
8. In the rejoinder affidavit, filed by the General Secretary of the applicant union, the contention of the management raised in para.12 of their reply that the lay-off was effected with the approval of the applicant union has not been denied. The first batch of lay-off included the Managing Director, officers and workers alike. The lay-off of the second batch was not affected because of prohibitory orders.
9. In the said rejoinder, it has also been asserted that the service of a charter of demands was not a prerequisite for the existence of a likelihood or of coercion, pressure, threat etc. To arrive at a settlement as it can be arrived at without a charter of demands. It was further asserted that the application under section 22-A(8)(g) of the I.R.O., 1969, was maintainable and that the reason on which lay-off was effected was not covered by the law. It was further claimed that even the management had received orders and that the workers were being called upon to work-over-time and in two shifts.
10. I have heard Mr. Ali Amjad, learned Advocate on behalf of applicant and .Mr. Mehmood Abdul Ghani, learned Advocate for respondent management. Dealing with the objections as to the maintainability of the petition, it has been argued by Mr. Ali Amjad, learned Advocate that the Court cannot construe a beneficial statute so as to permit violation of the provisions of law and that reference to section 34 was only in relation to the manner as the Commission was to deal with the cases of unfair labour practice in such other manner as may be prescribed by the Regulation under 22-F of the I.R.O., 1969. According to the learned counsel for the applicant any person having knowledge of violation of law can bring this fact to the notice of this Commission and in this connection, he has referred to a decision reported in 1983 PLC 411. The reference to section 22-A(8)
(g), according to him, is in relation to manner of the exercise of the functions by the Commission and not the manner of making an application by a party. Even for entering into a settlement with the management, no charter of demands under section 26(1) of the I.R.O., 1969 was necessary and settlement could be signed.
11. Mr. Ali Amjad, learned Advocate for the applicant has invited my attention to the provisions of Standing Order 11 of West Pakistan Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968 which provides that lay-off can be effected in case of fire, break-down of machinery, civil commotion or any other cause beyond his control. According to him the words "other cause beyond his control" refer to causes which are unforeseen in nature and that these causes should be similar and analogous in nature to the reasons given earlier in Standing Order 11 of the Standing Orders Ordinance, 1968. He has referred to AIR 1960 SC 893 in support of this aforementioned submission. The reason of lay-off assigned by the management therefore, does not come within the ambit of Standing Order 11. According to him no lay-off can be effected for reasons of trade problems. He has argued that business conditions were normal, that the company was not suffering loss and that the work orders have been received which has necessitated operating two shifts. Finally, he has argued that the Management have already applied to the Labour Court under Standing Order 11-A of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 for permission to close down the establishment and that earlier also the respondent management filed a similar case in 1994 which was subsequently withdrawn after getting settlement of their choice signed.
12. Mr. Mahmood Abdul Ghani, learned Advocate for respondent's management has claimed that section 22-A(8)(g) of the I.R.O., 1969 provides that the application is to be dealt with in the "manner" as laid down under section 34 of the I.R.O., 1969. He has argued that the word "manner" means mode. He has referred to the decision of Supreme Court of Pakistan reported in PLD 1991 SC 183 in support of his contention. He has also referred to dictionary meaning of the word "manner" as given in various judicial dictionaries. In brief the submission of the learned counsel for the respondent is that in terms of section 34 of the I.R.O., 1969, a union can only file a petition provided it relates to unfair labour practice committed against the union as against acts of unfair labour practice committed individually against members of the union. In this contention he has referred to the Full Bench decision of the Sindh High Court in case of Karachi Pipe Mills Limited reported in 1983 PLC 1359 which decision has been upheld by the Supreme Court of Pakistan in 1992 SCM R 36. He has also referred to th'e decision of the Division Bench of the Balochistan High Court in the case of Bolan Textile Mills Ltd. Which has been reported in 1986 PLC 751. Finally Mr. Mehmood Abdul Ghani, learned Advocate for the respondents has also placed on record two unreported decisions of Full Bench of the N.I.R.C. In Appeals Nos,12(99) of 1996 and 12(121) of 1996 in case of Northern Area Government Transport Corporation and PIA respectively. Mr. Mehmood A. Ghani learned Advocate for the respondents has next invited my attention to the decision of the Supreme Court of Pakistan in the case of Iftikhar Ahmad and others v. President, National. Bank of Pakistan reported in PLD 1988 SC 53 wherein it has been held that it is not right to construe section 22-A(8)(g) of I.R.O., 1969 as conferring a general jurisdiction upon the Benches to entertain all kinds of grievance petitions even though they may not having element of unfair labour practice. This decision has since been followed by the Full Bench of the NIRC in three unreported cases being Appeals Nos,12(201) of 1996- L, 12(34) of 1996-L and 12(121) of 1996.
13. In reply to the contention raised by Mr. Ali Amjad, learned Advocate for the petitioner that charter of demands was not a condition precedent for either signing of the settlement or for commission of acts of unfair labour practice, Mr. Mehmood Abdul Ghani, learned counsel for the'.
Respondents has submitted that a settlement can only be arrived at if a notice in terms of section 26(1) of I.R.O., 1969 or a notice of strike in terms of section 26(3) of I.R.O., 1969 is served. Already a settlement was in operation and, therefore, no further charter of demands could be served.
' I am inclined to support the version of Mr. Ali Amjad, learned counsel for the applicant. In actual practice agreements have been signed and implemented without notice under sections 26(i) and 26(iii) of the I.R.O.,1969.
14. As regards the interpretation of Standing Order 11 as placed by the learned counsel for the applicant union, the learned counsel for the respondent has referred to the decision of the Chairman, Labour Appellate Tribunal Sindh in the case reported in 1976 PLC 626 wherein it has been held that financial difficulties and uneconomic operations can also be valid grounds for lay-off. He has tried to distinguish the decision and has argued that the said decision is based on the law pertaining to lay-off as is in India and the words "other cause beyond his control" as they appear in Standing Order 11 of the West Pakistan Industrial and Commercial Employment (Standing Orders)
Ordinance 1968 area not available in the correspondence provisions of Indian Law pertaining to lay-off. He has argued that the respondent company is service industry which manufactures tin cans on orders from their customers and if there is no order, the, company cannot be expected to go on manufacturing cans as cans are manufactured as per specifications of the customers. If orders are not available, production can be temporarily curtailed and lay off effected unless it is proved through evidence that the lay-off had been declared to pressurise the union/workers to reduce the terms and conditions of employment to the disadvantage of workers or to crush the union.
15. The learned counsel for the respondents has next invited my attention to the fact that during July, to September, 1998 the company has suffered loss to the tune of Rs,7.54 million, for which reliance has been placed on unaudited accounts as held in 1964 PLC 593 and in 1981 PLC 390 which statement does not seem to have been challenged in the rejoinder affidavit.
16. Finally, on the issue pertaining to fresh orders, it has been submitted by the learned counsel for respondent that these orders as pointed out by learned counsel for applicants are only for a limited period and they are likely to be over within a span of one or two days. It was contended by the learned Advocate for respondents that the respondent company needed orders worth Rs,15 Million per month to operate as available unit. Regarding workers' strength, it was contended that 507 workers employed in the company was for three and as against this only one shift was working.
Regarding functioning of two shifts, it was contended that there were two printing machines and work only on printing machines to effect pending orders in respect of tin cans was being done.
17. I have considered the arguments of both the learned counsel and have also examined the written arguments.
18. I refrain from examining at this stage the issue as to whether the petition under section 22-A(8)
(g) of the I.R.O., 1969 can be filed by the union, as it appears that the respondent management have made out a case for the vacation of the interim order passed by me earlier.
19. It has not been specifically denied by the union in their rejoinder that the lay-off was not agreed by the applicant union as claimed by the respondent management in their reply. The applicant has also not disputed or seriously challenged the unaudited profit and loss account showing losses suffered by the respondent since July, 1998 onwards. The respondent has pointed out that this is a unique case where lay-off is not confined only to workers but includes the Managing Director, other executive as well as officers. It appears that the main thrust of the arguments of the learned counsel for the applicant was two-fold. Firstly, that the company has been making profits since 1995 to 1997, therefore, it cannot be claimed that layoff was justified. Secondly, the company wanted to reduce some of the existing terms and conditions of employment as was done in 1994 by putting pressure upon the union/workers to sign a settlement to that effect and to compel the union to do that an application was filed in the Labour Court permission to close down the establishment as well as by declaration of the lay-off. The lay-off, according to the management, has been necessitated as a resulting in financial loss to the respondent company brought about as a result of negligible orders. The documents submitted support the respondents' contention that there had been fall in production since July, 1998 onwards due to lack of orders. This is supported by the fact that month-wise production figures submitted by the management for the year 1995- 96 onwards and the comparative figures for July to September, onwards have not been denied or challenged in the rejoinder. The other plea of reduction in the terms and conditions of employment by forcing the workers/union to sign the settlement as dictated by the management needs evidence. ,
20. As regards the interpretation of Standing Order 11 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968,I am inclined to follow the interpretation as given by Mr. Justice Inamullah Khan, Chairman, Sindh Labour Appellate Tribunal.
' In view of the reason mentioned above, I am of the considered view that the case for confirmation of order, dated 17-11-1998 has not been made out and I accordingly recall the said orders and dismiss the application under Regulation 32(2)(c) of N.I.R.C. (P&F) Regulations, 1973. The issue pertaining to the maintainability of the application will be considered at the time of final disposal of the petition. To come up on 22-12-1998 for filing affidavit-in-evidence.