' ZIA MEHMOOD MIRZA (CHAIRMAN).---This appeal under section 22-D of I.R.O. 1969 filed by Reckitt & Colman of Pakistan Limited, Ethical Pharma Factory is directed against the order of the learned Single Member, Karachi Bench dated 29-7-2000 whereby the respondents' petition under section 22-A(8)(g) of I.R.O., 1969 has been accepted holding that the termination of the respondents is of no legal effect and they will be deemed to be in the employment of the appellant until any of them voluntarily accepts the offer of Golden Hand Shake and voluntarily resigns in terms of the agreement dated 24-3-2000 or until Sindh Labour Court accords permission for closing down the factory under Standing Order 11-A of the Standing Orders Ordinance, 1968 and in pursuance thereof, the appellant issues fresh termination letters to the respondents. It has been further directed in the impugned order that the appellant will continue to pay salary to the respondents "till they are terminated by legal course under Standing Order 12(3) of Standing Orders Ordinance, 1968, after permission for closure is accorded by Sindh Labour Court No,3, or any one of the applicant, if accepts the terms of agreement dated 24-3-2000 R/24 and thereby receives Golden Hand Shake benefits, and the salary so received by any of the said applicants shall be adjusted from their Golden Hand Shake benefits, which the respondents have agreement to give in case the worker severes relationship with the respondents by tendering his resignation w,e,f, 8-3-2000".
2. Facts forming the background of this appeal, briefly stated, are that the appellant company terminated the services of all its employees, 117 in number, including 21 respondents herein, who were working in its Ethical Pharma Factory situate at C-36, S.I.T.E., Karachi. The services of all these employees were terminated on 8-3-2000 and the reason for their termination as stated in the letter of termination all similarly worded was the high cost of manufacturing the Products in the said factory which it was stated, "caused continuous decline in profits and turned the operation in loss" which also eroded profits of the company as a whole. Yet another reason cited in the termination letters was the space constraints in the factory causing GMP Violations pointed, But by the Drug Authorities from time to time. For these reasons, the management decided to close down the factory and outsource the manufacturing of the Ethical Pharma Products to other Pharmaceutical Companies at Cheaper rates. Services of all the workers employed in the factory were accordingly terminated with immediate effect i,e, close of working hours of 8th March, 2000, on payment of one month's salary in lieu of notice.
' Simultaneous with the termination of all the 117 employees, the appellant filed an application under Standing Order 11-A of the Standing Orders Ordinance, 1968 before the 3rd Sindh Labour court for permission to close down its factory at C-36 Karachi. It appears that a day or two after the termination of services of the workers the appellant entered into negotiations with the office- bearers of the C.B.A. Union and as a result of the negotiations, an Agreement was signed/executed on 24-3-2000 whereby the management offered a financial package to the terminated employees by increasing their basic salary and House Rent Allowance w.e.f 1-1-2000, increasing the gratuity amount and allowing other additional benefits such as ex-gratia payment in lieu of bonus and other amounts of redundancy benefits. The agreement further provided that the individual affected/terminated workers will submit resignations with the request to convert their termination letters into resignations and also acknowledge that they forego lien to further employment or re- employment. It was also agreed that a joint consent application will be made by the Management and the C.B.A. In the 3rd Sindh Labour Court in Application No, 1 of 2000 under Standing Order 11-A for closure of the Ethical Pharma Factory/Establishment and that the union shall withdraw all cases pending before NIRC/other Courts. This Agreement/Package purported to settle the industrial dispute raised by C.B.A. On January 1, 2000 which was stated to be pending before the Area Conciliator. It may be stated that Reckitt & Colman Pharmaceutical Employees Union which was the C.B.A. In the appellant establishment had served a charter of demands on 1-1-2000 and the dispute so raised was pending before the Area Conciliator when the services of 117 workers were terminated by the appellant and also at the time of execution of the afore-referred Agreement.
3. It is an admitted fact that pursuant to the aforementioned Agreement, 96 out of 117 workers including the office-bearers of the C.B.A. Union submitted their resignations in terms of the Agreement, received all their legal dues and additional financial benefits under the Agreement in full and final settlement of all their claims and severed all their connections with the appellant Company. The remaining 21 workers viz the respondents herein, however, did not accept the agreement in question and filed a petition under section 22-A(8)(g) of I.R.O. Before a Bench of this Commission at Karachi to challenge various action of the appellant Company as acts of unfair labour practice. It may be stated that the petition 'was initially filed by 23 petitioners It appears that during the pendency of the petition, two of the petitioners namely Muhammad Azad and Irum Jabeen also resigned and received all their legal dues and benefits under the Agreement dated 24-3-2000 in full and final settlement of their claims with the result that the petition to their extent was held to be not maintainable. Be that as it may, case set up by the respondents in their petition was that they were permanent employees of the appellant Company and were the Members of Reckitt & Colman Pharmaceutical Employees Union/CBA in the appellant Establishment. It was alleged by the respondents that the office-bearers of the said union had resigned from the employment and ceased to be the Members of the union and as such the remaining workers elected new office-bearers of the union. It was also averred in the petition that an industrial dispute was pending in pursuance of a charter of demands submitted (by the C.B.A. Union) when the appellant management persuaded the workers to resign from the employment "otherwise their service shall be terminated". It was further averred by the respondents that the appellant company had also filed an application under Standing Order 11-A in the 3rd Sindh Labour Court for permission to close down the Establishment in which application they (respondents) had moved an application under Order l., Rule 10, C.P.C. For being impleaded as a party. Grievance was made by the respondents that the appellant company attempted to remove the workers from the employment prior to the permission from the Labour Court whereupon the workers protested and they were allowed to attend the factory. However, on the persuation of the Management and the union, several workers resigned from the employment and received their legal dues and other additional benefits but the respondents did not resign though the appellant pressurised them to do so by extending threats and stopping the canteen facility. Precise allegation made in para. 9 of the petition was that the respondents and all other workers "were taken back on duty after illegal termination and thereafter the workers had been removed from the employment after resignation but the applicants refused to give resignation." These actions of the appellant, it was contended, amounted to unfair labour practice. An averment was also made in the petition (presumably with reference to some earlier incident) that the appellant Management in collusion with the previous office-bearers of the union attempted to terminate the workers to crush the trade union and in fact removed 11 workers from employment and the previous office-bearers gave them no protection and instead withdrew all the cases to render the respondents helpless.
' On the allegations afore-mentioned, the respondents prayed in their petition that various steps taken by the appellant be declared as acts of unfair labour practice and the appellant "be restrained from shifting any machinery plant, material and product till the disposal of the case." It was further prayed that the appellant be also restrained from gate-stopping the respondents from their attendance in the establishment or stopping their salary and benefits and harassing, pressurising and threatening them. A direction was also sought to be issued to the appellant not to deal with the previous office-bearers of the union.
4. The appellant resisted the respondents' petition by filing a Reply thereto in which, inter alia, the following preliminary objections were raised:--
(i) That the petition jointly filed by 23 petitioners was not maintainable in law.
(ii) That the petitioner under section 22-A(8)(g) of the I.R.O. Is to be dealt with in the manner laid down under section 25-A of the I.R.O. And since the petitioners did not serve the grievance notice as required under section 25-A, the petition filed by them was not maintainable.
(iii) That Reckitt & Colman Pharmaceutical Employees Union of which the petitioners claimed to be the Members was admittedly not an Industrywise Trade Union but was registered with the Provincial Registrar of Trade Unions. As such the grievance agitated by the petitioners based on the alleged acts of unfair labour practice was justiciable before the Labour Court in terms of section 22-A(12) of the I.R.O. And not before this Commission.
(iv) That shifting of machinery, plaint, material and products is a managerial function and not an act of unfair labour practice. For this reason also, the petition filed by the petitioners under section 22-A(8)(g) of I.R.O. Was not maintainable.
(v) That the petitioners had earlier filed an application under Order 1, Rule 10, C.P.C. For impleading them as party in a previous case No,4-A(422) of 1999-K which application was not entertained by Bench of this Commission and as such the petition now filed by the petitioners was barred by the principle of res judicata.
(vi) That petitioners Nos.22 and 23 have since resigned and received all their dues and severed their connections with the appellant. The petition to their extent was, therefore, not maintainable.
' The appellant in its Reply also controverted the factual allegations made by the respondents in their petition and pleaded its own version in some detail stating that the services of all the petitioners were terminated vide letters of termination dated 8-2-2000 which were sent to them individually by post on their addresses available on the record and which were also published in Daily Newspaper. 'Aman' dated 9-3-2000. The appellant denied the claim of the respondents that the previous office-bearers had resigned from the employment and new office-bearers were elected. It was stated that the appellant had no knowledge about the change of office-bearers as no such change was communicated to it. It was alleged by the appellant that petitioner No,1 (respondent No,1 herein) was not even a Member of Reckitt & Colman Pharmaceutical Employees Union. As regards the termination of 11 workers it was stated by the appellant that their services were terminated in 1999 due to out-sourcing of non-core activities and they were given exgratia payment over and above the legal dues and none of them challenge the termination in any Court of law. The closing down of the factory was sought to be explained on the premises that due to continuous decline in profits and the loss suffered as per the last audited Accounts of the Company, the profitability and viability of the respondent company had eroded as a whole and the space constraint had caused G.M.P. Problems and irregularities which were pointed out by the Drug Authorities from time to time under the Drugs Act, 1976 and the Rules framed thereunder. The Management, therefore, decided to close down the Ethical Pharma Factory and out-source the manufacturing of Ethical Pharma to independent Pharmaceutical Companies at cheaper rates so as to make the company economically viable. It was further pointed out by the appellant that for the year ending December, 1999, the Company had suffered financial losses to the tune of Rs215,675,000, as shown in the balance sheet Annexure R/23 and pharmaceutical results also revealed operating loss of Rs93,647 millions for the year ending 31st December, 1999. Consequently, the management filed application under Standing Order 11-A before 3rd Sindh Labour Court Karachi for permission to close down the establishment and simultaneously terminated the services of 117 workers of Ethical Pharma Factory. It was further stated by the appellant that "After receiving termination letters all the workers led by the C.B.A. Approached the management and requested for payment of redundancy benefits amount/exgratia payment in addition to the legal dues in full and final settlement of all their claims to date and also forego their laien or claim of future employment. They also agreed to tender individual resignation letters severing all the connection with the company with effect from close of office on March 8, 2000". It was further claimed by the appellant that C.B.A Union also consented to the closure of Ethical Pharma Factory and the industrial dispute was thus, resolved and settled in terms of Agreement dated 24-3-2000 which was executed between the C.B.A. Union namely Reckitt & Colman Pharmaceutical Employees Union and the appellant management. Referring to the terms of the said Agreement, the appellant stated that it was specifically agreed therein that the package which was being given in the shape of redundancy benefit amount shall also settle the industrial dispute raised by the C.B.A. On 1-1- 2000. The appellant denied the respondents' allegation that the workers were forced to resign from the employment and sought to explain that since all the workers including the respondents had already been issued letters of termination, question of forcing them to resign did not arise. As regards the respondents' allegation that the appellant attempted to remove the workers before obtaining permission of the Labour Court, it was submitted by the appellant that "The formal permission under Standing Order 11-A need not be the first step in the process of closure but could well be the last step in the process of closure. Standing Order doe's not spell out any sequence in which various steps for closing down an establishment have to be taken by the employer." It was further averred by the appellant that the respondents fell within the strength of less than 50% of the workers and their services could; therefore, be terminated without attracting the provisions of Standing Order 11-A.. The allegation of the respondents that the workers had been attending the Factory subsequent to their termination was denied by the appellant and it was claimed that the workers were only allowed to come to the factory gate so that the C.B.A. Union could inform them of the talks going on with the management after termination of their services.
' The appellants also denied the respondent's allegation that it was attempting to hire other workers to crush the trade union and reiterated its submission that the management had decided to close down the Ethical Pharma Factory and out-source the manufacturing of Ethical Pharma Products to Independent Pharmaceutical Companies at Cheaper rates which, it was alleged, was permissible in law. The appellants also denied the allegation that after termination, the respondents or other workers were taken back on duty. It was explained by the appellant that the terminated workers were only allowed to sit in the factory so that the C.B.A. Could inform them about the result of negotiations going on with the management and get their consent in General Body Meeting for signing the Agreement. It was further stated by the appellant 96 out of 117 workers including petitioners Nos.22 and 23 had received all their dues and benefits and severed their connections with the appellant. It was alleged by the appellant that the petition was filed by the respondents with mala fide intentions in order to extort some more extra benefits from the respondent management as the formula of redundancy benefits depends on the length of service and since the applicant had lesser length of service, this claim suited them less favourably".
5. Both the parties adduced evidence by filing affidavit-in-evidence in support of their respective contentions. All the respondents herein filed their own affidavits-in-evidence while the appellant Company placed on record affidavit-in-evidence of three of its officers The deponents/witnesses on either side were duly cross-examined. The learned Member hearing the petitioner first of all dealt with the legal objection raised on behalf of the appellant and repelled them. The legal objection against the maintainability of the joint petition was rejected by the learned Member holding that all the petitioners before him had common cause of action against the termination based on closure of the factory by the appellant without prior permission of the. Labour Court, and therefore, their joint application was maintainable. The learned Member also overruled the appellant's objection regarding non-service of grievance notice under section 25-A of I.R.O. And held that for invoking the provisions of section 22-A(8)(g) of I.R.O., workers are not required to give grievance notice under section 25-A and in any case, when a petition under section 22-A(8)(g) is filed to prevent the occurrence of unfair labour practice, the case is to be dealt with under Regulation 32(2) of N.I.R.C. (Procedure and Functions) Regulations, 1973 which does not lay down any pre-condition of grievance notice. The learned Member proceeded to observe that the petition filed by the respondents under section 22-A(8)(g) has been dealt with in the manner prescribed in Regulation 32(2)(c) and as such grievance notice under section 25-A of I.R.O. Was not required to be given.
' The appellant's objection that since the respondents were Members of a locally registered trade union, their remedy lay only before the Labour Court under section 22-A(12) of I.R.O. And they could not invoke the jurisdiction of this Commission, was also overruled by the learned Member holding that both the N.I.R.C. And the Labour Court have concurrent jurisdiction to deal with the cases in respect of unfair Labour practice. The learned Member also found no substance in the appellant's objection that the respondents had filed their petition against Reckitt & Colman Pharmaceutical Limited which Company had no existence. The learned Member h found with reference to the appellant's evidence that Reckitt & Colman Pharmaceutical Limited which had employed the respondents was later amalgamated with the appellant Company. The objection of the appellant that the petition was not properly signed by some of the respondents, had also been overruled with the observation that the appellant did not produce any evidence to support this objection. The appellant's objection that petitioners Nos.22 and 23 having resigned during the pendency of the proceedings and having received all their dues in full and final settlement, the petition to their extent was not maintainable, has, however, been upheld by the learned Member with the observation that "the applicants Nos.22 and 23, having resigned and taken their dues in full and final settlement, have severed their connections with the respondents, as such the application in respect of applicants Nos.22 and 23 will not be maintainable".
6. On merits of the case, the learned Member found that although the letters of termination dated 8-3-2000 sent to the respondents through registered post and TCS were received back with endorsement of 'refusal' etc., the respondents came to know of their termination on 9-3-2000 when they came to the factory as usual and saw their termination orders published in daily 'Arran' dated 9-3-2000 copy whereof was affixed on the outer gate of the factory. It has been further found by the learned Member that thereafter, all the 117 workers including the respondents and the office- bearers of the C.B.A. Went to the Head Office of the appellant company where according to the management, at the request of the workers the management agreed to negotiate with the office- bearers of the C.B.A. Regarding golden handshake benefits to be given to all the terminated employees. Negotiations were accordingly held between the management and the office-bearers of the C.B.A. And three senior workers representing the employees. The learned Member, however, accepted the version of the respondents that the office-bearers of the C.B.A. Told them that they were negotiating with the management for their employment and they (respondents) had no knowledge that the negotiations were being held for golden handshake benefits. The learned Member also took note of the fact that the conciliation proceedings on the charter of demands dated 1-1-2000 were pending before the Area Conciliator when the Agreement dated 24-3-2000 was signed by the officers of the appellant Company and the office-bearers of the C.B.A. And observed that "It was, therefore, obligatory on the parties signing agreement that they should have signed the same before the Area Conciliator". The learned Member took the view that since the Agreement in question was not signed in the presence of Area Conciliator and it was also not drawn up in the matter and the form as prescribed by Rules 69 and 70 of the Industrial Relations (Sindh) Rules, 1973, it could not be considered to be an agreement or settlement for the purpose of I.R.O., 1969. Reliance for this proposition was placed on a judgment of Labour Appellate Tribunal, Sindh reported in 1981 PLC 47. The learned Member further observed that the Agreement dated 24- 3-2000 though bilateral appeared from its contents to be unilateral agreement whereby the appellant management had agreed to give package of golden handshake benefits to 117 terminated workers It was accordingly held by the learned Member that the Agreement in question "will not be binding on all the workers but will have validity only to the extent of the workers who ever accepts the same." Consequently, the respondents were not bound by the said Agreement but the same being in the nature of an offer from the management; they may or may not accept it.
' As regards the status of the respondents after the termination letters dated 8-3-2000 were issued against them, the learned Member held that since the management had itself invited all the 117 terminated workers on 9-3-2000 to come in the factory and agreed to negotiate with the office- bearers of the C.B.A. And three other senior workers by this conduct "they expressly as well as impliedly had withdrawn the termination letters of all 117 workers including the applicants" and considered them as their workers ad even recognized their status as officer-bearers and negotiated with them. With reference to Standing Order 11-A which provided that no employer shall terminate the employment of more than fifty per cent of the workmen or close down the whole of the establishment without prior permission of the Labour Court. The learned Member proceeded to hold that the termination of all the 117 workers of the Factory on 8-3-2000 without obtaining prior permission of the Labour Court in this behalf was clear contravention of the said Standing Order which also constituted an act of unfair labour practice as contemplated under section 15(1)(i) of I.R.O. The learned Member also took note of the fact that although all the 117 workers employed in Ethical Pharma Factory were terminated, the letters of termination mentioned that the services of the workers were terminated following the principle of 'last-come, first-go' which principle, it was observed by the learned Member, was relevant in the cases of retrenchment when some workers were retained and others were terminated. The learned Member, however, found that the appellant Company had four factories including Ethical Pharma Factory and Head Office all of which being one establishment, it was open to question whether the principle of 'last come, first go' was followed when terminating the services of 117 workers The learned Member observed that the appellant might have retained the employees junior to the respondents in their three factories and mentioned the legal term 'last in, first out' in the letters of termination only to show that the retrenchment made was transparent. With the aforenoted findings/observations, the learned Member disposed of the respondents' petition vide order, dated 29-7-2000 impugned in the present appeal.
7. We have heard the learned counsel for the parties at considerable length. They have addressed arguments on various points arising in this case. In view of their submissions, the first question which arises for consideration is whether the joint petition filed by the respondents before the Single Member and that too without serving the grievance notice on the appellant was maintainable and whether the grievance agitated by them involved any element of unfair labour practice so as to attract the jurisdiction of this commission under section 22-A(8)(g) of I.R.O., 1969.
It was contended by the learned counsel for the appellant that section 22-A(8)(g) of I.R.O., whereunder the petition was filed by the respondents did not provide for filing a joint petition and in the absence of such a provision, joint petition filed by the respondents was not maintainable. This objection, as noted above, was also raised before the learned Single Member who after examining the case-law cited before him held that the petitioners before him had common cause of action arising from the closure of the factory without prior permission of the Labour Court and as such they could bring a joint petition particularly when there was no legal bar against making a joint application. The view taken by the learned Member is unexceptionable as it could not be denied that on the averments made in their petition, all the respondents had a common grievance/cause of action arising inter alia, from the closure of the factory without prior permission of the Labour Court which grievance, in our view, could well be agitated in a joint petition in the absence of any legal bar thereto. Needless to observe that the learned counsel for the appellant could not refer to any law or authority barring the filing of a joint petition in a case-like the present one. On the contrary, the principle that the workers having common grievance may make a joint petition was accorded legislative recognition in subsection (10) of section 25-A of I.R.O., 1969 which provides that the workers having common grievance arising out of a common cause of action may make a joint application before the Labour Court. It may partinently be pointed out that the Benches of NIRC when dealing with the cases of unfair labour practice perform such functions and exercise such powers as are performed and exercised by a Labour Court Refer subsection 3(a) of section 22-B of I.R.O., 1969.
8. It was next contended by the learned counsel for the appellant that service of grievance notice in terms of section 25-A of I.R.O., was a condition precedent for filing a petition under section 22- A(8)(g) of I.R.O., but the respondents admittedly gave no such notice to the appellant with the result that the petition filed by them was not maintainable and it could not have been entertained by the learned Member. To support his contention, learned counsel referred to clause (g) of subsection (8) of section 22-A which lays down that the cases of unfair labour practices on the part of employers and workmen whether committed individually or collectively are to be dealt with in the manner laid down under section 25-A or section 34. Relying on this provision, learned counsel argued that the petition filed by the respondents raising individual grievances was to be dealt with in the manner laid down under section 25-A which requires a grievance notice to be served by the worker on his employer. Proceedings on these premises, it was contended by the learned counsel that it was obligatory for the respondents to give grievance notice to the appellant before filing their petition as provided in section 25-A. In order to appreciate the contention of the learned counsel, reference may appropriately be made to relevant provisions of section 22-A(8)
(g) and section 25-A of I.R.O., which are reproduced hereunder:-- 22-A. National Industrial Relations Commission---
(8) The following shall be the functions of the Commission, namely---
(g) to deal with cases of unfair labour practices specified in sections 15 and 16 on the part of employers workmen trade unions of either of them or persons acting on behalf of any of them.
Whether committed individually or collectively, in the manner laid down under section 25-A or section 34 or in such other way as may be prescribed, and to take in such manner as may be prescribed by regulations under section 22-F, measures calculated to prevent an employer or workman from committing an unfair labour practice.
25-A. Redress of individual grievances.--(1) A worker may bring his grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement for the time being in force to the notice of his employer in writing either himself or through his Shop Steward or (collective bargaining agent) within three months of the duty on which the cause of such grievance arises.
(2) Where a worker himself brings his grievance to the notice of the employer, the employer shall within fifteen days of the grievance being brought to his notice, communicate his decision in writing to the worker.
(3) Where a worker brings his grievance to the notice of his employer through his Shop Steward or (collective bargaining agent), the employer shall, within seven days of the grievance being brought- to his notice, communicate his decision in writing o the Shop Steward or, as the case may be, the (collective bargaining agent).
(4) If the employer fails to communicate a decision within the period specified in subsection (2) or as the case may be, subsection (3), or if the worker is dissatisfied with such decision, the worker or the Shop Stweard may take the matter to his (collective bargaining agent) or the (Labour Court) or, as the case may be, the (collective bargaining agent) may take the matter to the (Labour Court), and where the matter is taken to the (Labour Court), it shall give (a decision) within (seven) days from the date of the matter being brought before it as if such matter were an industrial dispute: Provided that a worker who desires to so take the matter to the (Labour Court) shall do so within a period of two months from the date of the communication of the employer or, as the case may be, from the expiry of the period mentioned in subsection (2), of subsection (3), as the case may be.
(5) In adjudicating and determining a grievance under subsection (4), the (Labour, Court) shall go into all the facts of the case and pass such orders as may he just and proper in the circumstances of the case.
(6) and (7) Omitted.
(8) ...................................................................
(9) ...................................................................
(10) ..........................................................................................
' It is manifest from the provision contained in subsection (8) (g) of section 22-A aforequoted that it is the function of National Industrial Relations Commission to deal with the cases of unfair labour practices on the part of employers or workmen whether committed individually or collectively and it is further provided therein that the Commission shall deal with such cases in the manner laid down in section 25-A or section 34 or in such other way as may be prescribed. Section 25-A provides for redressal of individual grievances of workers and it lays down in subsections (1) to (4) a grievance produce to be followed by the aggrieved worker before taking his grievance to the Labour Court. Subsection (1) of section 25-A requires the aggrieved worker to give a grievance notice in writing to his employer within three months from the date on which the cause of grievance arises. Subsections (2) and (3) specify the time-limit within which the employer is required to communicate his decision. Subsection (4) lays down that if the employer fails to communicate the decision within the specified period or if the worker is dissatisfied with the decision of the employer, he may take the matter to the Labour Court within a period of two months from the date of communication of the employer or from the expiry of the period mentioned in subsection(2) or subsection (3) as the case may be. Subsection (4) also commands the Labour Court to decide the matter brought before it as an Industrial dispute and to give its decision within seven days. The manner of adjudicating and determining the grievance is laid down in subsection (5) of section 25-A which directs the Labour Court to go into all the facts of the case and pass such orders as may be just and proper in the circumstances of the case.
' On closer examination of the aforenoted two provisions we are of the considered view that the expression in the manner laid down under section 25-A "used in subsection (8)(g) of section 22-A in the context of the Commission's jurisdiction to deal with the cases of unfair labour practices does not refer to pre-trial grievance procedure laid down in subsections (1) to (4) of section 25-A which is to be followed by the aggrieved workers before bringing their petition in the Labour Court.
In our view, the only provisions of section 25-A which may possibly be relevant for the purposes of dealing with the cases of unfair labour practices under section 22-A(8)(g) are those contained in the later part of subsection (4) which requires the matter to be decided as an industrial dispute within seven days and subsection (5) which says that in adjudicating and determining the grievance, the Court shall go into all the facts of the case and pass such orders as may be just and proper in the circumstances of the case. It may be observed that both these provisions relate to the mode and manner of dealing with and deciding the case which would facilitate the exercise of powers and performance of functions by the Commission when dealing with the cases of unfair labour practices under C section 22-A(8)(g) of I.R.O. In this view of the matter, we hold that the respondents were not required to give the grievance notice to the appellant before filing their petition in this Commission under section 22-A (8)(g) of I.R.O.
' We are also in agreement with the learned Single Member that when a petition is filed under section 22-A (8)(g) of I.R.O., to prevent the occurrence of unfair labour practice, the case is to be dealt with under Regulation 32(2) of N.I.R.C. (P&F) Regulations, 1973 which for obvious reasons does not require service of any grievance notice on the employer contemplated under section 25-A. It may be observed that the learned Member dealt with the respondents' petition in the manner prescribed in Regulation 32(2) to which no exception could be taken in view of the avertnents made in the body of the petition and the prohibitory/preventive relief claimed by the respondents.
9. Next contention of the learned counsel for the appellant with reference to maintainability of the respondents' petition under section 22-A(8)(g) was that the jurisdiction of N.I.R.C. Was confined only to the cases of unfair Labour practice that is to say where the workers are victimized by the employers on account of their trade union activities but in the present case, none of the respondents was even an office-bearer of the C.B.A. Union and as such they could not legitimately claim nor was it their case that they were terminated on account of their trade union activities There can be no cavil with the proposition canvassed by the learned counsel that the jurisdiction of this Commission under section 22-A(8)(g) of I.R.O. Can only be invoked in the cases relatable to unfair labour practices on the part of employers or workmen as the case may be. Reference in this behalf may be made to the judgment of Supreme Court of Pakistan in the case of "Iftikhar Ahmad and others v. President, National Bank of Pakistan and others" (PLD 1988 Supreme Court 53) cited by the learned counsel for the appellant wherein it was held that the cases which the Benches of N.I.R.C. are empowered to hear under the relevant provision "must have an element of unfair labour practices in them; it does not encompass cases where no allegation of unfair labour practice is made." It was further observed therein that sections 15 and 16 of the Ordinance set out instances of unfair labour practices on the part of the employers as well as workmen. Learned counsel for the respondents did not deny that nor e of the respondents was an office-bearer of the C.B.A. Union on 8-3-2000 when the services of all the 117 workers including the respondents were terminated by the management. He, however, contended that the allegations made in the petition under section 22- A(8)(g) of I.R.O. Constituted unfair labour practices on the part of appellants. He particularly referred to paras. 3, 4, 5 and 9 of the petition under section 22-A (8)(g) and contended that apart from other allegations made in the petition, it was also the case of the respondents that the appellant-company had terminated the services of all its workers and closed the factory without obtaining prior permission of the Labour Court which was an act of unfair labour practice as specified under section 15(1) (i) of I.R.O. Learned counsel for the respondents further submitted that the averments in the petition also made out a case of illegal lock-out resorted to by the appellant- company which too, was an act of unfair labour practice under clause (j) of section 15(1) of I.R.O. It was contended by the learned counsel that Standing Order 11-A makes permission of the Labour Court a condition precedent to the termination of employment of more than fifty per cent of the workers or closing down the whole of the establishment. Learned counsel argued that it was on record that the appellant-company terminated the services of all its employees and closed down the whole of the factory without obtaining prior permission of the Labour Court as required by Standing Order 11-A and thereby conravened the provisions of the said Standing Order which constituted an act of unfair labour practice under clause (i) of section 15(1) of I.R.O. In support of his submission, learned counsel relied upon judgment of Sindh High Court in the case of "A&B Beverages Shama Labour Union, Karachi v. Sindh Labour Court No,3 Karachi and another (1998 PLC 490) and a Full Bench decision of this Commission reported as "Muhammad Aslam Mughal v.
Chairman, OCP (MCP)" (1987 PLC 715). In the first mentioned case, learned Judge of Karachi High Court observed that Standing Order 11-A "envisages that an employer who desires to terminate more than 50 per cent of the workmen or its close down whole of the establishment, must obtain prior permission of the Labour Court." In the second case, it was held by a Full Bench of this Commission that any attempt on the part of Company (MCP) to proceed to retrench 50% of the workers progressively in order to ultimately get rid of their workers will be a device only to circumvent Standing Order 11-A and thus will attract section 15(1)(i) of I.R.O.
1969. It was further held that permission of the Labour Court under Standing Order 11-A would be necessary before terminating the employment of the workers for the purpose of winding up the respondent-company and that the option letter issued by the company to its employees, offering golden hand shake in order to induce them to resign before permission for closing down the establishment has been obtained, offends the provisions of Standing Order 11-A.
' Learned counsel for the appellant, on the other hand, relying upon the judgment of the Supreme Court of Pakistan in the case of South British Insurance Employees Union v. The Sindh Labour Court No,4 and others" (1975 SCM R 49) contended that it was not necessary for the appellant/employer to obtain prior permission of the Labour Court for closing down the factory and that the Labour Court's permission could be the last step in the process of closing it down. Submission of the learned counsel was that the services of the workers could be terminated as a first step and permission for closing down the factory could be obtained thereafter. Learned counsel argued that although the appellant-company had not obtained permission of the Labour Court before terminating the services of all its employees, it had filed an application under Standing Order 11-A, before the 3rd Sindh Labour Court for permission to close down the factory simultaneously with the termination of services of 117 workers employed in the factory and that being so, the appellant could not be said to have contravened the provisions of Standing Order 11-A in view of the dictum of Supreme Court of Pakistan in the afore-referred case. Reliance was also placed by the learned counsel on the following cases:- "M/s. Karimi Label Mils v. Sindh Labour Appellate Tribunal and another" (1983 PLC 502); "Dubai Bank Limited, Faisalabad v. Director Labour Welfare, Faisalbad and 9 others" (1990 PLC 501); "Zeal Pak Cement Factory Ltd v. Zeal Pak Cement Factory Employees Union" (1998 PLC 27) and An unreported Judgment of Sindh High Court dated 19-11-1999 passed in Constitutional Petition No,1072 of 1996 and an unreproted decision of a Full Bench of this Commission dated 15-6-2000 passed in Appeal No,12(23) of 1999
10. The cases cited by the learned counsel for the appellant when properly scrutinized are of no help to him because in none of these cases, the employer had closed down the whole of the establishment without obtaining prior permission from the Labour Court as required under Standing Order 11-A. In the case reported in 1975 SCM R 49 which was heavily relied upon by learned counsel for the appellant, the South British Insurance Company having suffered heavy losses, had closed its business in Lahore and wished to close its establishment in Karachi of which notice was given to its Karachi staff on 30-3-1973 informing them that it was winding up its business completely. The Employees Union challenged the legality of the said notice before the Labour Court and also filed a suit against the Company in the District Court at Karachi to restrain it from closing down its business which application and suit were pending when the Company also filed an application under Standing Order 11-A before another Labour Court for closure of ifs establishment.
The Labour Court allowed the Company's application vide order dated 3-1-1974 which was challenged by the Employees Union in Constitutional Petition No,55 of 1974 which was dismissed by the then High Court of Sindh and Balochistan vide Judgment dated 24-4-1974. The matter was then taken to the Supreme Court of Pakistan by the Employees Union raising a firesh point to the effect that the respondent-Company had acted illegally inasmuch as it had completed several other steps for closing down its business at Karachi before moving an application under Standing Order 11-A. Repelling its point the Supreme Court after referring to Standing Order 11-A as it stood then observed that "the Standing Order does not stipulate that the application to the Labour Court for permission to close down should be the first step in the process." Such an application, it was further observed, may be made by the employer simultaneously with any other step that he may have to take to wind up his business and close down his establishment. These observations, as noted above, were made in the context of the objection raised on behalf of the petitioner union therein that the respondent-company had acted illegally in completing several other steps for closing down its business at Karachi before moving the application under Standing Order 11-A and in any case, the observations so made by the Supreme Court quite evidently do not tend to lay down that an employer can close down the whole of the establishment without obtaining prior permission in that behalf from the Labour Court. On the contrary, the Supreme Court while interpreting Standing Order 11-A had clearly observe "all that it prescribes is that no employer shall close down the whole of its establishment without prior permission of the Labour Court in this, behalf." This in fact is so provided in clear and categorical terms in Standing Order 11-A which, in its relevant aspect, reads as follows:-- "............................ No employer shall close down the whole of the establishment without prior permission of the Labour Court in this behalf, Needless to point out that the factual position of the case noted hereinabove quite clearly shows that the Insurance Company had not yet closed its business at Karachi and thus, had not closed down the whole of the establishment when it filed the application under Standing Order 11-A before the Labour Court for permission to close down the whole of its establishment.
' Other cases, cited by the learned counsel for the appellant need not be discussed in greater detail, as they have mostly referred to/relied upon the afore-noted observations made by the Supreme Court in the Case of South British Insurance Employees Union. Case of Karimi Label Mills aforementioned proceeded on its own facts as the Management had closed down the Mills and terminated the services of all the workers in pursuance of a settlement arrived at between the Workers Union and the Management in conciliation proceedings. An objection was, however, raised on behalf of the workers that the settlement in question was in violation of Standing Order 11-A and as such it was not binding on them. While dealing with this contention, the learned Judges of Karachi High Court relying upon the afore-referred case reported in 1975 SCM R 49, held that Standing Order 11-A does not make it incumbent upon the employer to file an application for obtaining permission of the Labour Court for closing down the establishment as a first step and that he may file such an application at any stage in the process of closing down the establishment.
In the case of Dubai Bank Ltd, afore-referred, the Labour Appellate Tribunal, Punjab rely upon the decision of the Supreme court in 1975 SCM R 49 held that act of closing down an establishment could not be a single act but a series of acts and an application under Standing Order 11-A could be made during the course of doing such acts towards the closing down of the establishment. In the case of Zeal Pak Cement Factory referred to above, Labour Appellate Tribunal, Sindh while dismissing an application for transfer of a petition under Standing Order 11-A observed with reference to the afore-mentioned decision of the Supreme Court that once an application under Standing Order 11-A is filed, the process of termination can commence and the management is not required to wait till the final order is passed for permission to terminate or to close down the factory. In the unreported decision of Karachi High Court in Constitutional Petition No,1072 of 1996, it was found on facts by the High Court that the closure of the Garment Factory was justified on account of loss of business and was not mala fide. For this reason as also for additional reason that in the meantime, permission of the Labour Court under Standing Order 11-A had been obtained and the order of the Labour Court having not been challenged had attained finality, the Constitutional petition was held to be not maintainable and was dismissed in limine. As regards the Full Bench Decision of this Commission in Appeal No,12(23) of 1999 relied upon by the learned counsel for the appellant, suffice it to observe that the appeal was disposed of with the observation that termination of more than 50% workers without permission of the Labour Court was not specified as an act of unfair labour practice under section 15(1)(i) of I.R.O. And in case, the workshop is not closed by the management, the cause shall not fall within the ambit of unfair labour practice as contemplated under the aforesaid provision.
11. The legal position regarding the import and applicability of Standing Order 11-A emerging from the aforementioned survey of the case-law is that while the employer may take various steps towards closing down of his business/establishment even before moving an application under S.O.
11-A or thereafter, he cannot close down the whole of the establishment without obtaining prior permission of the Labour Court as mandated by Standing Order 11-A in pre-mptory language. The words "prior permission of the Labour Court in this behalf" in Standing Order 11-A place it beyond any controversy that the permission of the Labour Court must precede and not follow the closing down of the whole of the establishment. Now in the present case, it is in evidence that the appellant-Company in pursuance of the decision of its Board of Directors had terminated the services of all the 117 workers employed in Ethical Pharma Factory at C-36 Site and closed down the said factory. Refer, inter alia, the termination letters dated 8-3-2000 issued to all the workers and the Report of Assistant Director, Labour dated 25-3-2000 (A/5(b)) wherein Mr. A.H. Haidari, General Manager, Employees Relations of the appellant-Company is stated to have disclosed to the Assistant Director that all the 117 workers had been terminated w,e,f, 8-3-2000 as the factory had been closed down. Mr. A.H. Haidari appearing as witness for the appellant before the Single Member on 17-7-2000 deposed during his cross-examination "the respondent have not closed the business but have closed the factory where the appellants were working." This in fact was the stand of the learned counsel for the appellant before the learned Single Member as he statedly contended before the learned Member that "it has come in the evidence that the Factory is closed from 9-3-2000 and no manufacturing work is being done in the Factory." Refer para. 15 page 26 of the Impugned Order. It is also an admitted position that before closing down the factory, the appellant had not obtained permission of the Labour Court to close it down. Refer the statement in cross-examination of Mr. Iftikhar Ali, Factory Manager of the appellant-company. In fact, the appellant had only filed an application under Standing Order 11-A on 8-3-2000 for permission to close down the Factory and on the same day terminated the services of all the workers employed in the factory and closed down the factory without obtaining permission of the Labour Court in that behalf. The appellant thus clearly contravened the provisions of Standing Order 11-A which constituted an act of unfair labour practice as specified under section 15(1)(i) of I.R.O. Which prohibits the employer from closing down he whole of the establishment in contravention of Standing Order 11-A. That being so, the respondents could invoke the jurisdiction of this Commission to deal with the cases of unfair labour practice under section 22-A (8)(g) of I.R.O. And as such, the petition filed by them under the said provision was maintainable.
12. With respect to the plea of illegal lock-out raised on behalf of the respondnets learned counsel for the appellant submitted that the services of the respondents alongwith other workers having been terminated, plea of lock-out was not available to them as the lock-out is different from termination. Learned counsel contended that there is no severance of relationship of master and servant in a lock-out and as such only a person who continues to be in the service/employment can be locked-out by the employer by not allowing him to attend his duties. Learned counsel referred to the definition of "lock-out" in section 2(xvi) of I.R.O. And submitted that it, inter alia, envisages "refusal, absolute or conditional, by an employer to continue to employ an number of workmen employed by him" and contended that these words in the definition do not cover the terminated/dismissed employees. In support of his contention, learned counsel relied upon:-- (i). The Workers of "Bata Shoe Co. Lahore v. Bata Shoe Co." (1971 PLC 1).
(ii) "Feroz Din and others v. State of West Bengal" (1960-I LLJ 244).
(iii) "Lal Muhammad and 64 others v. M/s. Brooke Bond (Pakistan) Ltd" (1970 PLC 1).
(iv) "Recker & Colman Pak. Workers Union v. M/s Reckett & Colman of Pakistan Limited." (1962 PLC 263).
(v) "M/s General Iron and Steel Works Union v. General Iron and Steel Works Ltd" (1968 SCM R 534).
(vi) Colony Textile Mills Ltd v. The Assistant Director, Labour Welfare and 2 others (1964 PLC 605).
(vii) In all these cases, the view taken is that the lock-out contemplates no service of relationship of employer and employee which relationship continues as before but the employees are only shut out and not allowed to attend to their duties. That being so, those workers whose services have already been terminated cannot claim to have been locked-out. Services of the respondents were admittedly terminated vide letters of termination dated 8-3-2000 and as such the plea of lock-out was not available to them as rightly contended by the learned counsel for the appellant. It may pertinently be observed at this stage that on proper appraisal of the evidence/material available on record, we have not felt persuaded to accept the respondents' version that after their illegal termination, they were taken back on duty alongwith all other workers but were later illegally locked-out and not allowed to attend the factory nor do we find it possible to ascribe to the view taken by the learned Member that the appellant management had expressly as well as impliedly withdrawn the termination letters of all 17 workers including the respondents which view is not supported by any cogent and satisfactory evidence. In this view of the matter, case of the respondents did not fall within the purview of section 15(1)(j) of I.R.O. Which makes illegal lock-out an act of unfair labour practice.
13. Yet another objection to the maintainability of the respondents petition was raised by the learned counsel for the appellant with particular reference to subsection (12) of section 22-A of I.R.O., which provides that nothing in section 22-A, shall exclude the jurisdiction of a Labour Court to entertain the cases of unfair labour practices on the part of employers or workmen, whether individually or collectively. It was contended by the learned counsel that the jurisdiction of this Commission to deal with the cases of unfair Labour practices in terms of section 22-A (8)(g) of I.R.O. Is confined only to the cases relating to industrywise trade unions registered with this Commission while the cases relating to locally registered trade unions are justiciable only before the Labour Court whose jurisdiction to entertain the cases of unfair labour practices on the part of the employers or workmen has been specifically saved by virtue of subsection (12) of section 22-A.
Learned counsel referred to various provisions of section 22-A to contend that National Industrial Relations Commission stands at a higher pedestal and its jurisdiction is confined to industrywise trade unions and the Organizations at the National level and it cannot entertain a case pertaining to a Provincially registered trade union. Proceedings on this premise, learned counsel argued that since the union of which the respondents claimed to be the members was admittedly registered with the Provincial Registrar of Trade Unions, they could agitate their grievance of unfair labour practice only before the Labour Court under section 22-A(12) and not before this Commission.
Support for this proposition was sought to be drawn by the learned counsel from two judgments of Labour Appellate Tribunal, Baluchistan viz "M. Shafi and another v. Regional Manager, Agricultural Development Bank of Pakistan and another" (1992 PLC 45) and "M. Arif, Regional President Pakistan Telecommunication Union (Traffic) Telephone House Quetta and 3 others v. M. Iqbal and 2 others"
(1989 PLC 135). Learned counsel also placed reliance on a judgment of Karachi High Court in the case of "Sajjad Mehmood and another v. Sindh Labour Court etc." reported in PLD 1987 Kar. 67 and an unreported decision of this Commission (Present .Chairman, N.I.R.C.) in Case No,4-A(307) of 1999 titled "Mazdoor Ittehad Labour Union v. Pakistan Oil Fields Limited".
' The argument of exclusiveness of jurisdiction of N.I.R.C. And the Labour Court for dealing with the cases of unfair labour practices though having the merit of being innovative is not supported by the plain language of two provisions referred to above viz section 22-A(8)(g) and section 22-A(12) as also other relevant provisions. Needless to observe that if the law-maker had intended to lay down that the Commission shall only deal with the cases of unfair labour practices brought before it by the employers or the workmen in relation to industrywise trade unions and that the workers who are members of locally registered trade unions should approach only the Labour Court for redress of their grievances based on unfair labour practices on the part of the employers it could have so provided specifically but no such provision seems to have been made in the I.R.O.
Reference at this stage may usefully be made to the relevant provisions of I.R.O. Which are reproduced hereunder:-- ' Section 22-A National Industrial Relations Commission:--
(1) The Federal Government shall constitute a National Industrial Relations Commission.
(2)
(3)
(4)
(5)
(6)
(7)
(8) The following shall be that functions of the Commission, namely:--
(a) to promote the formation of trade unions of workers within the same industry whether in establishments within a Province or in more than one Province and federations of such trade unions;
(b) to promote the formation of federations at the national level;
(c) to adjudicate and determine an industrial dispute to which an industrywise trade union or a federation of such trade unions is a party and which is not confined to matter of purely local nature and any other industrial dispute which is, in the opinion of the Federal Government, of national importance and is referred to it by that Government;
(d) to register industrywise trade unions, federations of such trade unions and federations at national level;
(e) to determine the collective bargaining agents amongst industrywise trade unions, federations of such trade unions and federations at the national level;
(t) to try offences punishable under:--
(i) Section 53, other than subsections (1) and (5) thereof; and
(ii) "any other section, in so far as they relate to employers or workers in relations to an indsutrywise trade union, a federation of such trade unions, a federation at the national level or officers of such union or federation;
(g) to deal with cases of unfair labour practices specified in sections 15 and 16 on the part of employers workmen, trade unions or either of them or persons acting on behalf of any of them, whether committed individually or collectively, in the manner laid down under section 25-A or section 34 or in such other way as may be prescribed, and to take, in such manner as may be prescribed by Regulations under section 22-F, measures calculated to prevent and employer or workman from committing an unfair labour practice;
(h) .....................................................................................
(i)
(9) The Commission may, on the application of a party, or of its own motion, --
(a) initiate prosecution, trial or proceedings, or take action with regard to any matter relating to its functions; and
(b) withdraw from a Labour any application proceedings or appeal relating to unfair labour practice.
(10) For the purpose of dealing with a case of unfair labour practice of which the Commission is seized, the Commission may --
(a) proceed directly with the case, or
(b) ask the Registrar within whose jurisdiction the case has occurred or is likely to occur to enquire into it and submit a report, or
(c) refer the case to a Labour Court within whose jurisdiction the case has occurred or is likely to occur, either for report or for disposal.
(10-a) The Labour Court to whom the case is so referred shall enquire into it and, if the case was referred to it for report, forward its report thereon to the Commission or, if the case was referred to it for disposal, continue the proceedings and dispose of the case as if the proceedings had originally commenced before it and grant such relief as the Commission has the power to grant.
(11) Save as provided in subsection (10-a) and (12) no Registrar, Labour Court or Tribunal shall take any action, or entertain any application or proceedings, in respect of any matter which falls within the jurisdiction of the Commission.
(12) Nothing in this section shall be deemed to exclude the jurisdiction of a Labour Court to entertain cases of unfair labour practices on the part of employers or workmen, whether individually or collectively: Provided that no Court, including a Labour Court, shall take any action or entertain any application or proceedings in respect of a case of unfair labour practice which is being dealt with by the Commission.
(13) Omitted .......
Explanation:---In this section and in the succeeding provisions of this Ordinance, the expressions "industrywise trade union", "federation of such trade unions and "federation at the national level" refer to a trade union the membership of which extends to establishment in more than one province and a federation of trade unions whose membership extends to registered trade unions in more than one Province.
' Section 53. Penantly for unfair labour practices"
(1) -------------------------------------------------- (1-A) ------------------------------------------------
(2) --------------------------------------------------
(3) --------------------------------------------------
(4) --------------------------------------------------
(5) ---------------------------
(6) Nothing in this Ordinance shall be deemed to exclude the jurisdiction of a Labour Court or the Court of a Magistrate to try a case under this section if it is authorised to do so by a general or special order of the Commission.
(7)
14. As is manifest from the provisions aforequoted, functions, powers and jurisdiction of National Industrial Relations Commission have been laid down in subsections (8)(9) and (10) of section 22- A with further provision contained in subsection (11) that save as provided in subsections (10-a) and (12), no Registrar, Labour Court or Tribunal shall take any action, or entertain any application or proceedings, in respect of any matter which falls within the jurisdiction of the Commission. It may be pointed out that saving in subsection (11) is with respect to the jurisdiction of the Labour Court in the cases referred to it by the Commission and the cases of unfair labour practices which it may itself entertain under subsection (12).
' Functions of the Commission as laid in subsection (8), inter alia, are to promote the formation of industrywise trade unions, federation of such unions and the federation at the national level; to register such unions/federatoin and to determine the collective bargaining agents amongst them.
It is also the function of the Commission to adjudicate and determine and industrial dispute to which and industrywise trade union or a federation of such trade unions is a party and any other industrial dispute of National importance which is referred to the Commission by the Federal Government. The Commission is also empowered under clause (f) of subsection (8) to try offences of unfair labour practices punishable under section 53 other than subsections (1) and (5) thereof and the offences punishable under any other section insofar as they relate to employers or workers in relation to an industrywise trade union, a federation of such trade unions, a federation at the national level or officers of such federation or union. Apart from its jurisdiction to try offences specified in clause (f) of subsection (8), the Commission is also vested with jurisdiction under clause (g) of subsection (8) to deal with the cases of unfair labour practices specified in sections 15 and 16 which is a jurisdiction of civil nature. It may be stated that sections 15 and 16 of I.R.O.
Enumerate the instances of unfair labour practices on the part of the employers and the workmen.
It is provided in subsection (10) that for the purpose of dealing with a case of unfair labour practice of which the Commission is seized, the Commission may proceed directly with the case or refer the case to a Labour Court within whose jurisdiction the case has occurred or is likely to occur either for report or for disposal. Subsection (10-a) provides that the Labour Court to whom the case is so referred shall enquire into it and submit the report to the Commission if the case was referred to it for report and, if the case was referred to it for disposal, it shall continue to proceed with it and dispose it of as if the proceedings and originally commenced before it and grant such relief as the Commission has the power to grant. The Commission is also empowered under clause (b) of subsection (9) to withdraw from a Labour Court any application, proceedings or appeal relating to unfair labour practice. As noted above, it is provided in subsection (11) that no Registrar, Labour Court or Tribunal shall take any action, or entertain any application or proceedings in respect of any matter which falls within the jurisdiction of the Commission. This provision seems to confer exclusive jurisdiction on the Commission in matter falling within its competence but this is subject to what is provided in subsections (10-a) and (12) whereunder the Labour Court can also deal with the-cases of unfair labour practices. It may be pointed out that under subsection (10-a), the Labour Court in a case of unfair labour practice referred to it by the Commission under subsection (10), can proceed with it and disposed it of as if the proceedings had originally commenced before it. Subsection (12) in terms saves the jurisdiction of the Labour Court to entertain the cases of unfair labour practices on the part of employers or workmen but with the proviso that the Labour Court shall not take any action or entertain any application or proceedings in respect of a case of unfair labour practice which is being dealt with by the Commission. Position which thus, emerges is that both the Commission and the Labour Courts have got the jurisdiction to deal with and adjudicate the cases of unfair labour practices with the rider that no Labour Court shall take any action or entertain any application or proceedings in respect of a case of unfair labour practice which is already being dealt with by the Commission. There is, however, no specific provision either in subsection (8)(g) or subsection (12) which would support the distinction sought to be drawn by the learned counsel for the appellant viz that the jurisdiction of the Commission under subsection (8)
(g) is confined only to the cases of unfair labour practices in relation to industrywise trade unions and the Commission cannot entertain and deal with the cases of unfair labour practices relating to employers or workmen in relation to locally registered trade unions.
15. A bare look at the aforenoted provisions of section 22-A would show that in matters in which it was intended to confer the jurisdiction on the Commission only in relation to industrywise trade unions, federation of such unions and federation at the national level, it was specifically so provided. For instance, in the matters of formation and registration of trade unions, determination of C.B.A. And adjudication of industrial disputes, it has been specifically provided in clauses (a) to
(e) of subsection (8) that it shall be the function of the Commission to promote formation of industrywise trade unions, federation of such unions and federation at the national level.; to register such unions/federations and determine the C.B.A. Amongst them and to adjudicate and determine an industrial dispute to which an industrywise trade union or a federation of such trade unions is a party and any other industrial dispute of national importance. Similarly, in sub-clause
(ii) of clause (f) of subsection (8), it has been specifically provided that the offences punishable under any other section (other than section 53) shall be triable by the Commission insofar as these offences relate to employers or workers in relation to a industrywise trade union, a federation of such trade unions, a federation at the national level or officers of such union or federation. The specification so made in sub-sclause (ii) thus, restricts the jurisdiction of the Commission only to those of the offences punishable under any other section of I.R.O. (other than section 53) which are committed by employers or workers in relation to industrywise trade unions, federation of such unions, federation at the national level or officers of such unions/federatoins. It is significant that no such provision has been made in clause (g) of subsection (8) which has conferred jurisdiction of civil nature on the Commission to deal with cases of unfair labour practice so as to limit the exercise of this jurisdiction only to such cases of unfair labour practice as are committed or likely to be committed by the employers or workmen in relation to an indsutrywise trade union, federation of such trade unions or a federation at the national level. Needless to observe that if it had been intended that the Commission shall only deal with the cases of unfair labour practice on the part of the employer or workmen which are relatable to industrywise trade unions as contended by the learned counsel for the appellant, a provision in that behalf would have been specifically made in N clause (g) of subsection (8) as was done in sub-clause (ii) of clause (f) of subsection (8) for trial of offences mentioned/specified therein. In the absence of any such provisions in clause (g), it is not possible to accept the argument of the learned counsel for the appellant that just because the Commission stands at a higher pedestal by reason of the nature of its functions/jurisdiction specified in various provisions of section 22-A referred to hereinabove, the jurisdiction of the Commission to deal with the cases of unfair labour practices under section 22-A(8)(g) should be construed as confined only to industrywise trade unions, federation of such unions and the organisations at the national level. If that were so, the law-maker would not have made a specific provisions like the one contained in sub-clause (ii) of clause (1) of subsection (8) referred to above.
It may pertinently be pointed out at this stage that even the offences of unfair labour punishable under section 53 which the Commission has been empowered to try under sub-clause (i) of clause
(f) are not required to be relatable to an industrywise trade union or a federation of such trade union or a federation at the national level.
' On the same reasoning as aforementioned, we find no substance in the contention of the learned counsel that the cases of unfair labour practice relating to the employers or workmen in relation to the locally registered trade unions and the establishments existing at the local/provincial level are justiciable only before the Labour .Courts which are set up at the provincial/local level and such cases cannot be brought before the Commission. The inference sought to be drawn by the learned counsel is not warranted by the language of subsection (12) of section 22-A or by any principle, authority or rule of interpretation. Needless to point out that subsection (12) in terms has not incorporated any such limitation as has been suggested/canvassed by the learned counsel for the appellant. Furthermore, the fact that the Commission when dealing with a case of unfair labour practice can refer it to a Labour Court for report or for disposal and can also withdraw any application or proceedings relating to unfair labour practice from the Labour Court also militates against the contention of the learned counsel that the Commission and the Labour Court have mutually exclusive jurisdiction to deal with the cases of unfair labour practices. If, as contended by the learned counsel, the Commission could not itself entertain and deal with a case of unfair labour practice relatable to locally registered trade unions, it could not withdraw such a case from the Labour Court to itself.
' For the reasons aforementioned, we find no force in the contention of the learned counsel for the appellant that the jurisdiction of this Commission under section 22-A(8)(g) is confined only to the cases of unfair labour practice in relation to industrywise trade unions and consequently we repel his objection to the maintainability of respondent' petition. The cases cited by the learned counsel for the appellant which have been referred to in para 13 above are of no help to him as three of the cited cases namely those reported in 1992 PLC 45, 1989 PLC 135 and PLD 1987 Kar. 67 arose out of criminal complaints filed before the Labour Courts for trial of offences and in each case, an objection was taken that the Labour Court had no jurisdiction to try the offences forming the subject-matter of the complaint filed before it which objection was upheld. We find that the judgements in all these three cases turned on the provisions of the I.R.O. Relating to the jurisdictions of the Commission and the Labour Courts to try criminal offences and as such those cases have no relevance to the point raised in this appeal. Reference may pertinently be made to the case of Sajjad Mahmood v. Sindh Labour Court (PLD 1987 Kar. 67) decided by Karachi High Court wherein after referring to various provisions of I.R.O., it was held that the offences (of unfair labour practice) punishable under section 53(1-A), (2), (3) and (4) fall within the exclusive jurisdiction of N.I.R.C. And the jurisdiction of the Labour Court to try these offences is limited to such cases where it is authorised by a general or special order of the Commission as provided by section 53(6). The unreported decision of this Commission in Case No,4-A(307) of 1999 relied upon by the leaned counsel for the appellant is also of no help to him as it proceeded on its own facts. Dispute in that case related to referendum proceedings being conducted by the Registrar of Trade Unions, Rawalpindi Region and both the contesting unions were registered with the said Registrar.
Grievance made by the petitioner union therein was that the President of the other union was not a workman and could not continue to be the office-bearer of the union nor could his union take part in the referendum proceedings unless he was eliminated from the office he was holding. The objection was repelled with the office he was holding. The objection was repelled with the observation that if it is be assumed that the said office-bearer of the contesting union was not a workman, his union could not on that account be prevented from contesting the referendum so long as the union remained a duly registered union. With reference to the allegation of unfair labour practice made by the petitioner union, it was observed that even if the allegation made amounted to unfair labour practice, petitioner union may approach the Labour Court which is also possessed of jurisdiction in such matters by virtue of subsection (12) of section 22-A of I.R.O. This observation quite evidently did not amount to holding that the Labour Court had the exclusive jurisdiction in the matter. It was also finally pointed out in the decision that the jurisdiction of this Commission extends only to the cases of industrywise trade union, federation of such trade unions and the federations at the national level. It may be stated that this observation on which the learned counsel sought to rely heavily was made in the context of the referendum which was being contested by two unions admittedly registered with Regional Registrar of trade unions.
16. Next question requiring consideration is as to whether the agreement dated 24-3-2000 (R/24) said to have been executed between the appellant management and the office-bearers of the C.B.A. Union was lawfully executed and constituted a settlement/agreement for .The purpose of I.R.O. And whether it had the binding effect. As noted above, the learned Single Member while dealing with this aspect of the matter held that since the conciliation proceedings were pending before the Area Conciliator when the agreement in question was executed on 24-3-2000, it was obligatory on the parties signing the agreement to have signed it before the Conciliator so as to cloth it with authenticity but that was not done. It was further found by the learned Member that the agreement in question was not drawn up in the manner and form as prescribed by rules 69 and 70 of Industrial Relations (Sindh) Rules, 1973. The learned Member accordingly held that the agreement "cannot be considered to be an agreement or settlement for the purpose of I.R.O., 1969."
The view taken by the learned Member was that the agreement though apparently bilateral was in fact unilateral agreement whereby the appellant management had agreed to give package of golden handshake benefits to 117 terminated workers In this view of the matter, the learned Member proceeded to hold that the agreement in question would not be binding on all the workers and as such the respondents may or may not accept it. It was, however, observed that 96 workers who had accepted the golden handshake benefits under the said agreement and voluntarily submitted their resignations and the management converted their termination into their resignations were estopped from contending that the agreement was not binding on them.
' Learned counsel for the appellant assailed the findings of the learned Single Member and submitted that after receiving the letter of termination dated 8-3-2000, all the 117 terminated workers including the respondents approached the Management, and at their request, the management agreed to negotiate with the office-bearers of the C.B.A. Union for giving golden handshake benefits to the terminated employees. Thereafter, the meetings between the officer- bearers of the union and the management were held from 9-3-2000 to 24-3-2000 and during this entire period, all the terminated workers remained in the factory premises with the permission of the factory Manager, to keep themselves informed of the progress made in the negotiations and finally on 24-3-2000, the agreement in question was executed which was signed by all the office- bearers of C.B.A. Union and three other senior employee representing the workers as also by three officers of the appellant company representing the employer. Learned counsel contended that the agreement thus had the approval of all, the terminated employees including the respondents. It was submitted by the learned counsel for that the respondents never raised-any objection to the negotiations being held between the office-bearers of the C.B.A. Union and the management which lasted for about two weeks nor did they write to the management that they had no confidence in the office-bearers of the union. It was also pointed out by the learned counsel that 94 out of 117 terminated workers accepted the agreement in question, received their dues in pursuance thereof and submitted resignations during the period 3-4-2000 to 6-4-2000. Learned counsel stated that two more terminated workers namely Muhammad Azad Khan and Irrum Jabeen who had earlier filed the petition alongwith the respondents before the learned single member also accepted the agreement, received their dues and submitted their resignations during the pendency of the petition. Precise argument of the learned counsel was that the agreement having been accepted by an overwhelming majority of workers it would be presumed to be just and fair. It was submitted by the learned counsel that the agreement in question was executed the C.B.A. Union and the employer during the pendency of the industrial dispute and as such it was valid and lawful settlement for the purpose of I.R.O. And was binding on all the workers including the respondents who admittedly were the members of the CBA Union whose office- bearers negotiated the terms of the agreement and signed it. It was further submitted by the learned counsel that by virtue of the agreement in question, the industrial dispute raised by the C.B.A. Union on 1-1-2000 which was pending before the Conciliator was also settled. In the submission of the learned counsel, the fact that the agreement was not signed by and in the presence of the conciliator did not detract from its validity as the General Secretary and Joint Secretary of the C.B.A. Union and a representative of the employer appeared before the conciliator on 11-4-2000 and informed him that the dispute between the parties had been resolved by means of an agreement, copy whereof was produced before the Conciliator who disposed of the industrial dispute pending before him on 11-4-2000. The. Learned counsel argued that the agreement/settlement between the appellant and the CBA union having been executed voluntarily was binding on all the workers particularly when it was accepted by as many as 96 out of 117 terminated workers According to the learned counsel, the learned Member failed to appreciate that the terms of the agreement/settlement were quite fair and reasonable which was amply demonstrated by the fact that it was accepted by overwhelming majority of the workers Learned counsel pointed out that according to the terms of the agreement reached between the management and the C.B.A. Union, the management agreed to increase basic salary of the terminated workers by Rs500 w,e,f, 1-1-2000 and to increase house rent allowance by Rs200 w,e,f, the same date. Apart from this, the management also agreed to increase the gratuity amount payable to each terminated workers by giving an increase of 5 days in the existing gratuity scale in each slab. Ex-gratia bonus equal to 6 months basic salary plus cost of living allowance was also agreed to be paid to all the terminated workers It was submitted by the learned counsel that financial impact of the package offered in the agreement to the terminated employees was about Rs31 million. It was also submitted by learned counsel that none of the respondents was an office- bearer of the union when their services were terminated on 8-3-2000. It was only after the agreement was executed that the respondents held election and some of them were elected as office-bearers of the union on 27-3-2000. They notified the change to the Registrar of Trade Unions on 4-4-2000 which was approved by the Registrar on 13-5-2000. Learned counsel further pointed out that the approval of the change of the office-bearers was subsequently recalled by the Regisrar on 16-8-2000. The matter was then agitated before the Labour Court which refused to grant the stay order. In support of his contentions, the learned counsel relied upon the following cases:--
(i) Tata Engineering and Locomotive Co.Ltd. v. Workmen (1981 'Vol-II LLJ 429).
(ii) Johnson & Johnson Ltd., v. Maharashtra General Kamgar Union and others (1997 Vol-II LLJ 1157)
(iii) Messrs Abbobacker v. HMT Ltd. And another (1993 Vol-H LLJ 318).
(iv) Britannia Discuit Co. Ltd. Employees Union v. Assistant Commissioner of Labour Headquarters and others (1993 Vol-I LLJ 181).
(v) James Iqbal v. Messrs Park Davis & Co. Ltd. And others (1998 PLC 15).
(vi) Adamjee Jute Mills Ltd. v. The Province of East Pakistan and others (1960 PLC 166).
(vii) Messrs Karimi Label Mills v. Sindh Labour Appellate Tribunal and another (1983 PLC 502).
' Learned counsel appearing for the respondents on the other hand sought to rely upon; (1)
Workmen of Messrs Delhi Cloth General Mills, Ltd v. The Management of Messrs Delhi Cloth and General Mills (AIR 1970 SC 1851); (ii) The State of Bombay and others v. The Hospital Mazdoor Sabha and others (AIR 1960 SC 610) and (iii) The workmen of Tando Jam and its Feeders v. Director, Agricultural Engineer Sindh and 8 others (1981 PLC 47), to support the findings of the learned Member on the question of validity and binding effect of the agreement.
17. In order to examine the validity of the agreement and its binding effect which form the subject- matter of the controversy in the present case, reference may pertinently be made to section 2(xxiv) and section 39 of I.R.O., 1969 which are reproduced hereunder:-- ' Section 2...
"(xxiv) ' Settlement' means a settlement arrived at in the course of conciliation proceedings, and includes an agreement between an employer and his workmen arrived at otherwise than in the course of any conciliation proceedings, where such agreement is in writing, has been signed by the parties thereto in such manner as may be prescribed and a copy thereof has been sent to the Provincial Government, the conciliator and such other person as may be prescribed;"
"39. Settlement and award on whom binding.---(1) A settlement arrived at in the course of a conciliation proceeding, or otherwise between the employer and the collective bargaining agent or an award of an arbitrator prescribed under section 31, or an award or decision of a Labour Court delivered under section 37 or decision of the Tribunal under section 38 shall:--
(a) be binding on all other parties to the industrial dispute;
(b) be binding on all other parties summoned to appear in any proceedings before a Labour Court as parties to the industrial dispute, unless the Court specifically otherwise directs in respect of any such party;
(c) be binding on the heirs , successors or assignees of the employer in respect of the establishment to which the industrial dispute relates where an employer is one of the parties to the dispute; and
(d) where a collective bargaining agent is one of the parties to the dispute, be binding on all workmen who were employed in the establishment or industry to which the industrial dispute relates on the date on which the dispute first arose or who are employed therein after that date.
' Provided that, where a collective bargaining agent or a trade union performing the functions of a collective bargaining agent under section 52 exists, the employer shall not enter into a settlement with any other trade union, and any contravention of this provision shall be deemed to be unfair labour practice under section 15.
(2) A settlement arrived at by agreement between the employer and a trade union otherwise than in the course of conciliation proceedings shall be binding on the parties to the agreement."
' "Settlement" as defined in clause (xxiv) envisages a settlement arrived at in the course of a conciliation proceedings and it also includes an agreement between an employer and his workmen arrived at otherwise than in the course of any conciliation proceedings. The agreement in question quite evidently was not arrived at in the course of a conciliation proceedings though it was executed while the conciliation proceedings were pending before the Conciliator. It is an admitted position that the agreement in a. Question came to be executed as a result of bilateral negotiations held between the appellant-company and the office-bearers of the union without associating the Conciliator in such negotiations. The record shows that the Conciliator was informed about the said agreement only on 11-4-2000 and a copy thereof was produced before him on that date by the parties to the industrial dispute when they appeared before him. It may be stated that the settlement can be said to have been arrived at in the course of conciliation proceedings only when it is arrived at with active participation, assistance and concurrence of the conciliation officer. Refer Bata Shoes Co. Ltd. v. D.N. Gangouly (AIR 1961 SC 1158). The agreement in question was thus quite obviously arrived at otherwise than in the course of any conciliation proceedings but as we see it, it was not an agreement between an employer and his workmen as after the termination of services of all the 117 employees on 8-3-2000, the office-bearers of the C.B.A. And three other socalled senior employees were no more the workmen nor was consequently the appellant their employer. Refer the definition of "worker" and "workmen" as given in clause (xxviii) of section 2 of I.R.O. It was in fact admitted by Mr. A.H. Haideri the appellant's witness, in his cross-examination that after their termination on 8-3-2000, the office-bearers of C.B.A. Were no more the workers employed in the appellant establishment w,e,f, 9-3-2000. Even if it be assumed for the sake of argument that the appellant was the employer and the office-bearers of the CBA Union and three other persons who executed and signed the agreement were the workmen within the purview of clause (xxiv), the agreement in question has to satisfy the requirement mentioned in clause (xxiv) namely that such an agreement is in writing, has been signed by the parties thereto in the prescribed manner and a copy thereof has been sent to the Provincial Government, the Conciliator and such other person as may be prescribed. No doubt, the agreement dated 24-3- 2000 was reduced into writing and it had also been signed by the parties thereto but it was neither in the prescribed Form nor copies thereof were ever sent to the Provincial Government and other prescribed authorities. As stated above, copy of the agreement was only supplied to the Conciliator and that too when the parties went to appear before him in connection with industrial dispute. Rule 70 of the Industrial Relations (Sindh) Rules, 1973 provides that an agreement in writing between the employer and his workmen arrived at otherwise than in the course of conciliation proceedings shall be signed by the representative of the employer and workmen at a meeting and such agreement shall be in Form 'X' which is reproduced hereunder: "FORM 'X'
(Rule 70)
' FORM OF AGREEMENT ' Representing Workers ' Representing Employers ' Short Recital of the Case.
' Terms of agreement.
' SIGNATURE OF PARTIES ' Representing Workers ' Representing Employers ' Date. .............
' Copy to:-
(1) The Director Labour Government of ....
(2) Conciliator (of the area concerned)
(3) The Secretary, Ministry of Labour Government of Pakistan.
(4) The Secretary, Labour Department, Government of..........
' The authorities to whom the copies of the agreement are required to be sent are clearly specified in Form 'X' and it is not the case of the appellant that the copies of the agreement in question were sent to any of those authorities except that the copy was supplied to the Conciliator on 11-4-2000.
Photocopy of the agreement placed on the appeal file quite clearly shows that the agreement is not in prescribed Form. Rule 70, in our view, is mandatory in nature insofar as non-compliance thereof is punishable under rule 74. In the circumstances, the agreement in question, for failure to fulfil the statutory requirements of mandatory character, cannot be treated as settlement as defined in clause (xxiv) of section 2 of I.R.O.
' In the aforesaid view of the matter, section 39 of I.R.O. Which lays down the binding effect of settlements is not attracted to the agreement in question and as such it would not have any binding effect. The agreement in question even otherwise, cannot be considered as a settlement for the purpose of I.R.O. The object of a settlement howsoever arrived at, whether through bilateral negotiation or through the machinery of Conciliation is to settle an industrial dispute which has arisen or is likely to arise in any establishment so as to establish and promote peace and harmony therein. In the present case, the appellant establishment had already been closed and the services of all the workmen employed therein stood terminated when the appellant and the office-bearers started negotiations which ultimately resulted in the agreement in question. Going by the stipulation in the agreement in question, the object of the appellant, it appears was to obtain resignations from the terminated employees so that they may not resort to litigation and with that object in view, the management had agreed to offer them some additional benefits mentioned in the agreement. The learned Member was, therefore, right in observing that the agreement though apparently bilateral was in fact an offer by the appellant to the terminated workers to seek their resignations in lieu of package of additional benefits. In the circumstances, the agreement was at the most binding on the office-bearers of the then C.B.A. Union and three other persons who had held negotiations with the appellant and had executed/signed the agreement and on no one else.
Before concluding this issue, we would like to observe that the judgments cited by the learned counsel for the appellant which we have minutely gone through are of no help to him because in none of these cases, the agreement/settlement was executed after the closure of the establishment/termination of all the workers
18. Learned counsel for the appellant also took strong exception to the finding recorded by the learned Member to the effect that all the four factories of the appellant-Company and the Head Office were one establishment. The learned counsel submitted that this finding was recorded by the learned Member suo moto although it was nobody's case. It was argued by the learned counsel that if the said finding is taken to be correct, then keeping in view the total number of employees in the four Factories and the Head Office, there was no question of seeking any permission to close down Ethical Pharma Factory situated at C-36 SITE, Karachi. The learned counsel is right that it was not the case of any of the parties that the aforementioned four factories and the Head Office constituted one establishment. We, however, find that the learned Member took note of the fact that even though all the 117 workers employed in Ethical Pharma Factory were terminated, it was mentioned in the letters of their termination that their services were terminated following the principle of 'last come first go' which principle, it was observed by the learned Member and rightly so, was relevant only in the cases of retrenchment. In our view, it was because of the unwarranted mention of the principle of 'last come first go' in the letter of termination that the learned Member proceeded to hold with reference to the evidence of the appellant's witnesses Mr. A.H. Haidery and Rashid Umar Siddiqui that the appellant Company had four factories including the Ethical Pharma Factory any Head Office and observed, though without any basis, that all of them being one establishment it was open to question whether the principle of 'last come first go' was followed by the appellant in terminating the services of 117 workers This observation was wholly uncalled for. It may pertinently be observed that it was the case of the parties throughout that Ethical Pharma Factory was an independent establishment closure whereof was assailed by the respondents on the ground that it was violative of Standing Order 11-A, while the plea taken by the appellant, on the other hand, was that it had moved an application before the Labour Court for permission to close down the said factory. Be that as it may, the finding in question is not very crucial insofar as the impugned order is based on numerous other legal and factual grounds.
19. During the course of his address, the learned counsel also contended that even though the respondents had not challenged the orders of their termination nor did they claim their reinstatement in service, yet the learned Member in the impugned order declared the termination of the respondents as of no legal effect. The grievance made by the learned counsel overlooks the legal position enacted in subsection (5) of section 25-A that in adjudicating and determining the grievance of a worker, the Labour Court is empowered to go into all the facts of the case and pass such orders as may be just and proper in the circumstances of the case. Needless to observe that under section 22-B(3)(a) of I.R.O., 1969, the Benches of this Commission are empowered to perform such functions and exercise such powers as are performed and exercised by Labour Court. The objection raised is thus devoid of any substance.
' Upshot of the above discussion is that we find no merit in this appeal which is hereby dismissed ' Before parting with this Judgment, we would like to express our deep appreciation for the valuable assistance rendered by Mr. Mahmood Abdul Ghani learned counsel for the appellant and for Mr. M.A.K. Azmati learned counsel for the Respondents.