' Petitioners S. Qamaruddin and 7 others have filed a petition under section 22-A(8)(g) of the I.R.O., 1969 against S.G.S. Pakistan (Pvt.) Limited through its Managing Director F.A. Shah, Director and Khalid Shaikhani, Manager, Finance and Administration, S.G.S. Pakistan (Pvt.) Limited.
2. Alongwith main petition, the petitioner filed application under Regulation 32(2)(c) of N.I.R.C. (P&F)
Regulations, 1973 on which ad interim order was passed by this Bench of Commission. The matter has come up for confirmation of the stay or otherwise.
3. The facts briefly stated are that the petitioners are permanent workers and are' performing their duties as Telex Operator, Fax Operator/Communications Assistants., Drivers, Peons, etc., are workers under Standing Orders Ordinance, 1968 as well as I.R.O., 1969. They joined SGS Workers Front which is CBA for the workers/employees working in SGS Pakistan (Pvt.) Ltd. There is only one union of workers in the establishment of respondents under the name and style of SGS Workers Front and when it came to the knowledge of respondents Nos.1 and 3 that the petitioners have joined the union and became its members, they were annoyed and by one reason or the other they tried to force them with different tactics that they should discontinue their affiliation and to withdraw their membership from the union but the petitioners declined to accept their direction and advice. It is alleged that right from the formation and certification of CBA Union, the respondents challenged the, status and competency of the members of CBA Union and the matter is pending before the learned Fifth Labour Court. One worker Kausar also challenged termination order by filing application under section 25-A of the I.R.O., 1969 and the Labour Court vide order, dated 30-9-1999 allowed his application. On the same date respondents Nos.2 and 3 held meeting which continued upto 3-30 p.m. And therafter the respondent No,3 informed the petitioners that all of them will go to godown of respondent No,1 which is located at Tipu Sultan Road and there is a meeting with all the petitioners at about 4 to 4-30 p.m. As per direction of respondent No,3 all the petitioners reached at godown and found that at the main gate one police mobile, in which one A.S.-I. And five police personnel's/constables and two civil dress persons were present and after some time said A.S.-I.
Who was present in the mobile alongwith 3 constables entered and respondents Nos.2 and 3 placed before the petitioners order of their termination and some other typed papers and respondents Nos.2 and 3 directed the petitioners that it is their choice either they immediately resign from the membership of CBA and also to submit in writing that in future also they will not join CBA union otherwise their termination orders are ready and the same were also offered. The petitioners tried to inform the respondents that their direction was illegal and unjust and obtaining the membership of the CBA is their Constitutional right and I.R.O. Also provides the opportunity of the same but the respondents threatened and forced them that if they do not accept their direction, they cannot continue in their employments which are acts of unfair labour practice and they are apprehending immediate termination of their service due to their trade union activities.
4. The respondents were duly served. They filed their comments as well as objections and counter- affidavit to the stay application wherein they have denied all the allegations of petitioner and have taken legal plea that the petition is not maintainable under section 22-A(8)(g) of the I.R.O., 1969.
They have also denied that they have committed any unfair labour practice or have any intention to commit the same. Their case is that the petitioners were permanent employees in the Communication Department and Carpool Department of respondent No,1, as the economy measures the management, has taken decision to abolish both these departments and in consequence of said abolition the services of 10 persons become redundant and as matter of retrenchment their services were terminated by way of reorganization on 30-9-1999.
5. I have heard Mr. M.A.K. Azmati, learned Advocate for the applicant and Mr. M.L. Shahani, learned Advocate for the respondents and have perused the material available on record.
6. It is contended by Mr. M.A.K. Azmati, learned counsel for the applicants that the respondents are continuously harassing the applicants by way of recruiting the workers in place of permanent workers who will be terminated. He has further contended that by way of unfair labour practice, the petitioners have been terminated and that no termination order has been communicated to the applicants.
7. On the other hand Mr. M.L. Shahani, learned counsel appearing for respondents has argued that the services of the applicants were terminated on 30-9-1999 by way of retrenchment as Communication and Carpool Departments were closed. He has further argued that the applicants have challenged their termination before the Labour Court which was subsequently withdrawn by them from the said Labour Court. He has lastly argued that the termination order having been issued and acted upon, the N.I.R.C. Has no jurisdiction to reinstate the workers and grant status quo ante.
8. It is an admitted position that the applicants were terminated from service on 30-9-1999 which is evident from their pleading. The perusal of para. 6 of the petition clearly shows that the termination orders were ready on 30-9-1999 and were offered to them on that date which clearly shows that their termination orders were ready and were offered to them. The present petition has been filed on 1-10-1999 i,e, after the termination of the order. Moreover, after the termination of services, the applicants have filed their grievance petition under section 25-A of the I.R.O., 1969 before the learned Fifth Sindh Labour Court, Karachi, copies of the same are available on record which also clearly shows that their services were terminated on 30-9-1999. All those applications were withdrawn by the applicants on 13-4-2000 from the learned Labour Court.
9. It is an admitted position that jurisdiction of N.I.R.C. Is limited.The Commission cannot set aside the termination order and reinstate the applicants into service under section 22-A(8)(g) of the I.R.O., 1969. The applicants in their petition could not quote specific instance of their lawful trade union activities but have stated that they are being victimized due to their trade union activities in order to establish a case of unfair labour practice and their trade union activities. The applicants have produced photostat copies of membership forms which are Annexs.A/1 to A/8 and payment of membership fee, Annex.A/9. These receipts clearly show that the applicants joined the union on 29-9-1999 and their services were terminated on 30-9-1999. In such circumstances it is crystal clear that no union activities could be done in one day. The fact of trade union activities of the applicants has been specifically denied by the respondents. Even otherwise, the applicants have not quoted any specific instance of their lawful trade union activities and mere allegation that they have been terminated due to their trade union activities is not sufficient to establish that applicants have been victimized due to their trade union activities. At the time of filing of the petition, the applicants were no more in service.
10. Now the question for consideration is whether the Commission is competent to suspend the order of termination and restore status quo ante. Sub-Regulation (1) of Regulation 32 of the N.I.R.C.
(P&F) Regulations, 1973 deals with the case of unfair labour practice already committed which provides that where any unfair labour practice has been already committed and the case falls under section 25-A and section 34 or 53 of the I.R.O., 1969 as the case may be, the Commission may deal with the case under that section and while awarding punishment under section 53 of the I.R.O.., 1969 the Commission may direct reinstatement of a worker and allow consequential benefits to him.
11. Sub-Regulation (2) of Regulation 32 on the other hand makes provision for unfair labour practice likely to be committed. In such cases, the Commission is empowered, inter alia to advise, direct or prohibit all or any of the connected persons to do or refrain from doing any act or to conduct their affairs in a manner calculated to avoid occurrence of unfair labour practice. But the Commission has not been vested with such power in respect of unfair labour practice already committed, which is covered by sub-Regulation (1) of Regulation 32. Therefore, no relief by way of status quo ante can be granted to the applicant under Regulation 32(2) of N.I.R.C. (P&F) Regulations, 1973. Reference can be placed in this respect of 1997 SCM R 1508. Apart from this, Regulation 32(2)(c) has consistently been interpreted by the Division Bench of the Sindh High Court 1342 and unreported decision in C.P. No,D-1197 of 1997 and the Lahore High Court in PLD. 1976 Lahore 611 and 1980 PLC 752(c). All these decisions were examined and followed by the Full Bench of National Industrial Relations Commission in the case reported in 1994 PLC 476 and also followed by the Full Bench of N.I.R.C. In the unreported Appeal No,12(116) of 1990 and 12(117) of 1990. This clearly shows that superior judiciary has consistently taken the view that act already taken place cannot be suspended or kept in abeyance under Regulation 32(2)(c) which only limits the powers of the Commission to prevent future occurrence of act of unfair labour practice. In the circumstances no relief in terms of Regulation 32(2) can be granted. Even otherwise mere unspecific allegations of unfair labour practice are not sufficient to hold that termination is an act of unfair labour practice.
12. The applicants have been terminated from service on 30-9-1999 and the present petition has been filed before this Bench of Commission on 1-10-1999 i,e, after the termination of the order. The jurisdiction of N.I.R.C. Under section 22-A(8)(g) of the I.R.O., 1969 is very limited. The Commission cannot sit as an Appellate Court over the action of the management. The applicants have failed to quote specific instance of their lawful trade union activities but have repeated their allegation of being victimised due to their trade union activities. Mere bald allegations of unfair labour practice are not sufficient to prove the victimization and make amenable for the interference by the Commission. In the circumstances the relief prayed for is misconceived and cannot be granted, as such, the petition is not maintainable.
' In view of above discussion the main petition by itself is not maintainable and has becomes infructuous after the issuance of termination order. I, therefore, dismiss the main petition as well as the application under Regulation 32(2)(c) of N.I.R.C. (P&F) Regulations, 1973.
' Given under my hand and seal of the Commission, this 26th day of August, 2000.