1. ' By this order the application under order 1 rule 10 C.P.C. Filed by the intervenors (1) Carmine D'melo
(2) Saba Naz (3) Shaista Zareen (4) Mehnaz (5) Qaiser Tasneem (6) Zahida Jaffery (7) Naseem Akhtar (8) Roohi limn (9) Seema Talar (10) Humera (11) Farhat Bano (12) Irum (13) Shagufta Jabeen
(14) Asma Perveen (15) Muneera Naz (16) Farzana (17) Zehra (18) Mah-e-Talat (19) Rasheeda (20)
2. Muhammad Aslam (21) Muhammad Azad (22) Tayyab Hussain and (23) Farhana Sarwat and consequently the application under Standing Order 11-A of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 are to be disposed off. Notice of the application under Order 1 rule 10 of C.P.C. Was given to the other side and the applicant and respondent both have contested the above applications and tiled objections. In the application under consideration it has been said that the intervenors were workers in the applicant's establishment Reckitt & Colman of Pakistan Ltd. While the respondent is a union which is also a Collective Bargaining Agents and the office-bearers representing the union were not interested to plead the case of the workers and were involved in getting benefits themselves and the union. The respondent had lost the confidence of the workers. The union officials acted contrary to law and the constitution of the union and were doing acts without approval from the workers. The applicant and the respondent in collusion with each other were attempting to close down the establishment for which 'the office-bearers were not authorised and the intervenors had shown no confidence on those office-bearers of the Union and formed their own union and therefore it was necessary that the intervenors may be made party as a respondent. It has further been said that respondent's union may sell out interests of the workers in absence of the intervenors unless the true and real office-bearers were allowed to represent themselves in the Court. It has also been said in the application that the office-bearers of the respondent's union and other workers had received and availed golden handshake policy and had received the amount as advance against the full and final settlement as such they were no more workmen nor the office-bearers and in those circumstances the intervenors were liable to be made a party in the matter in absence of which they shall suffer irreparable loss and would be seriously prejudiced. The applicants have tiled objections to the application. S. Iftikhar Ali notified manager has filed his affidavit to support the objections wherein he has said that the Union had approached the management for considering possibility of payment of Golden Hand-Shake Ex-Gracia payment demanded in the Charter of demands after termination of entire 117 workers. This had taken place as a result of protracted negotiations between the applicant's company and the C.B.A. On 24-3-2000 and an agreement was executed between the management of the applicant and the C.B.A. Union, the respondent which was signed by the President and other office-bearers of the Managing Committee of the union including one Hazrat Shah, a senior member and Pesh Iman and other workers who participated in the negotiations. It has been denied that the applicant and the respondent were incollusion with each other. The applicant's company agreed to enter into a redundancy claim based upon certain principles one of them being the length of service. Since the length of service of the intervenors was lesser as compared to other retrenched workers, the Golden Hand-Shake become less favourable to the intervenors. It has been said that in the present application under section 11-A of the Standing Orders Ordinance, 1968 the individual workers had no locus standi to contest these proceedings for closure of the establishment. The claim of the intervenors is therefore misconceived, it is yet not clear which set-up of office-bearers is representing the union for consideration of the application of the intervenors.
3. ' The Intervenors has no locus standi to be impleaded as a party or to be heard in the proceedings for closure of the establishment which is settled position by the Hon'ble Superior Courts and in this present case also the Hon'ble Sindh Labour Appellate Tribunal, Karachi vide order dated 21-8-2000 in Revision Application No,KAR-17 of 2000 has also held that the terminated workers, who had not availed benefits of agreement, had no locus standi or vested right to be impleaded as a party.
4. ' The Intervenors have filed affidavit-in-rejoinder denying the fact given in the counter affidavit by the applicants to the application for joining party under order 1 rule 10 C.P.C. Filed by the intervenors and have added new facts therein as well.
5. ' The respondents have tiled counter affidavit of Muhammad Irfan General Secretary of the union denying the allegations stated in the application under Order 1 rule 10 C.P.C. And the affidavit tiled therein and in the affidavit it has been said that the services of the intervenors have already been terminated and they had no locus standi in the matter and had no authority to become an intervenor/party in the matter of closure of the establishment for which a joint application has already been moved by the necessary parties. It has been said that the Hon'ble Sindh Labour Appellate Tribunal relying upon the judgment of Hon'ble High Court of Sindh as reported in 1986 PLC 1052 had disposed off the revision in this case vide order dated 21-8-2000 which settled the fate of the applications of intervenors under order 1 rule 10 C.P.C. Now under consideration and-therefore the application of the intervenors is liable to be rejected.
6. ' The Counter Affidavit of Muhammad Irfan who is General Secretary of respondent's union representing the respondent has also been tiled and the allegation of the intervenors have been denied. The affidavit in rejoinder has been tiled by the intervenors wherein they have said Muhammad Irfan had already resigned from the employment and there was no relationship of employer and employee between him and the management, therefore it has no force in the eye of law.
7. ' I have considered the arguments advanced by the learned advocates for the applicant and the respondent. The intervenors' advocate has not argued the matter. The matter was being delayed for one or the other and on 29-9-2000 it was fixed for orders for today when the parties were directed to file written arguments before the date of hearing. The applicants' advocate tiled the written arguments but today again an adjournment application was filed by the learned advocate for the intervenors wherein he stated that the petition filed against the order passed by the Hon'ble Tribunal dated 21-8-2000 before the Hon'ble High Court of Sindh was disposed off on 3-10-2000 and he has not received the certified copy of the order and therefore he prayed for adjournment again. The copy of the order has been received by this Court from the office of the Hon'ble High Court of Sindh directly today and the petition filed by one of the intervenors Mst. Asama Parveen in Constitutional petition bearing No,D-1445 of 2000 was disposed off by Hon'ble High Court of Sindh as per order dated 3-10-2000 wherein the Hon'ble High Court has observed that there was no obstacle in the way of the petitioner to pursue the application under Order 1 rule 10 C.P.C. Filed by the petitioner abovenamed. In these circumstances the application for adjournment on that ground appears to be again a protraction and therefore its fate is nothing but rejection. The adjournment application is rejected.
8. ' Therefore, now I shall consider the arguments as advanced by Mr. Faisal Mehmood Ghani, learned advocate for the applicant and Mr. Nishat Warsi, learned advocate for the respondent. The learned advocate for the applicant contended that the union entered into bilateral negotiations with the management and on 24-3-2000 a Memorandum of Agreement was concluded between the C.B.A.
9. And the management. It is not out of context to point that out of 117 workers as many as 96 workers had submitted their resignations, accepted the legal dues in full and final settlement and has severed their connection with the management. It is not out of context to point out that the 21 persons applying for being individually impleaded as party, total normal legal dues are only Rs,1,659,341 vide annexure A/9 to the affidavit in evidence of S. Iftikhar Ali. However under the Golden-HandShake Scheme, the management have agreed to give to these 21 persons who have so far not cleared their dues, a total amount of Rs,4,063,282 as detailed in annexure A/10 to the affidavit in evidence of S.Iftikhar Ali. In other words the benefits being given to the intervenors under the agreement dated 24-3-2000 are much more than that provided in law.
10. ' It has further been contended that a subsequent development that took place was that on 13-5- 2000 the Registrar of Trade Union had effected a change in office-bearers whereby Carmine D'Mello became office bearer but on 16-8-2000 the Registrar of Trade Unions recalled his earlier letter of change thus restoring the old set of office-bearers as office-bearers of the union. This letter is annexure A/11 to the affidavit in evidence of S.Iftikhar Ali. Aggrieved against this decision of the Registrar, Carmine D'Mello through the Union filed Appeal No,5 of 2000 under section 8(7) of the Industrial Relations Ordinance, 1969 before the Vth Sindh Labour Court, Karachi. The Hon'ble Labour Court has finally not suspended the order of the Registrar of Trade Unions. On 11-9-2000 the Advocate for Carmine D'Mello prayed that Status quo be extended till the disposal of the Appeal but even this prayer was not granted. Copy of this order is on record. In other words at present there is neither any stay order nor any status-quo operating in favour of Carmine D/Mello who claimed to be leader of the other group who are intervenors here and the order of the Registrar of Trade Unions recalling his earlier change of office-bearers stands good. Thus Muhammad Wan continues to be the General Secretary of the union as in the past previously.
11. ' Number of authorities have been cited on behalf of the applicant on the decision and principles that there is no provision for impleading individual persons as party to the proceedings and reliance placed 1986 PLC 1052 at page 1056 and order on revision application in this case by the Hon'ble Tribunal.
12. ' In 1993 Volume III Labour Law Journal 384 at 385 it was held by the Bombay High Court that if the majority of the workers have accepted the settlement it is binding and individual worker did not come in the picture at all as a settlement is to be concluded between the employer and the C.B.A.
13. ' Similarly in 1981 Volume II Labour Law Journal page 429, the Supreme Court of India held that if a settlement has been accepted by vast majority of their workmen with their workmen with their eyes open and accepted by them it must be presumed to be a fair and not liable to be ignored merely because a small number of workers are not prepared to accept the settlement.
14. ' Likewise in 1983 Volume I Labour Law Journal page 181 the Madrass High Court held that it was not necessary that each individual workman should know the implication of the settlement negotiated between the management and the recognized union and that industrial jurisprudence is based on Collective Bargaining Agent and in the matter of that Bargaining the workman has individually do not come into the picture at all.
15. ' In view of the aforesaid authoritative decision of the Hon'ble High Court of Sindh present Hon'ble Chairman Sindh Labour Appellate Tribunal and the earlier Hon'ble Chairman of Sindh Labour Appellate Tribunal and law cited above, the 21 individual applications for being impleaded as party to the present proceedings filed by them are misconceived and the same are liable to be dismissed.
16. ' The next issue for consideration is to decide as to which group is to represent on behalf of the union before this Hon'ble Court. The first group who signed the settlement was led by Muhammad Irfan as General Secretary. No doubt the Revision had earlier effected the change whereby Carmine D'Mello was notified as the General Secretary vide letter dated 13-5-2000 but this letter has since been recalled by the Registrar of Trade Unions vide his subsequent letter dated 16-8- 2000. This letter of recall holds the field even this date. The Union Carmine D'Mello group had filed Appeal No,5 of 2000 in the Vth Sindh Labour Court at Karachi but neither any stay order has been obtained nor the operation of this letter dated 16-8-2000 has been suspended. Thus Carmine D'Mello has no locus standi to represent the union and it is Muhammad Irian who continues to hold the field and represent the workers. Reliance is placed on 1997 SCM R 1508.
17. The aforesaid decisions thus support the contention of the management applicant that merely because these 21 individual workers are not agreeable to the settlement, they cannot disown the same as this settlement is between the management and the C.B.A. And admittedly these 21 persons were members of the union hence the settlement is equally binding on them. The benefits under the settlement are much more than that provided in law. Individual workers are not expected to be made party to every settlement concluded between the management and the C.B.A. Terms of the agreement as such are binding on these 21 individual persons which constitute only 16% whereas the majority of 84% constituting 96 workers have already accepted the settlement and cleared the dues in full and final settlement. Reliance is also placed on 1975 SCM R 49 as also the very recent unreported decision of the Division Bench of Karachi High Court in Criminal Petition No,1072 of 1996 titled. Salahuddin and 42 others v. Sindh Labour Appellate Tribunal, wherein the Division Bench of the Karachi High Court after referring to the aforesaid decision of the Supreme Court of Pakistan held that even where the termination of services of 226 workers had taken place on 28-8-1998 because of financial losses and the petition for closure of the establishment was filed in the year, 1992 the Division Bench of the High Court held that because of financial losses the permission was to be granted.
18. ' Therefore for the foregoing reasons the application under Order 1 rule 10 C.P.C. Do not merit consideration and are accordingly dismissed.
19. ' As a result of the above discussion the applications under Order 1 rule 10 C.P.C. Tiled by the individual worker have been decided and dismissed and there are only two parties. i,e, the applicant and the respondent remain left in the field. Now looking to the tact that the application under section 11-A of the Standing Orders Ordinance, 1968 of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 has not been opposed by the respondent who remains in the field as notified and valid union officers as declared by the Labour '
20. Department in their letter No,DW/842/92/2000/234 dated 16-8-2000 recalling the previous order which had made intervenors union office-bearers of the union, the union of the Muhammad Irian now remains in the field who has already given his detailed no objection to the grant of application under section 11-A of the Standing Orders Ordinance, 1968` tiled by the applicants. The intervenors are out of field and in those circumstances nothing remains before this Court to refrain from the disposal of the main petition under section 11-A of the Standing Orders Ordinance, 1968. The applicants have produced their budget showing continuous deficit and losses and there does not appear any mala tide on their behalf when they make request under section 11-A of the Standing Orders Ordinance, 1968. There is agreement/settlement between the applicant and the respondent's union. In the present case there were financial benefits available and granted to the workers worth Rs,1,659,341 and the workers have been paid which more than what are their legal dues. It is also not a denied position that out of 117 workers only 21 workers have applied for being made party and have not accepted the terms of agreement while the other 96 workers had got cleared, dues in full and final settlement that meant more than 84% workers had already received their legal dues but the fact remains that the settlement between the management and the C.B.A.
21. (respondent) is binding upon all those members of the union who are represented by the union which includes the intervenors as well, therefore, the settlement is binding upon intervenors as well as held in 1998 PLC 15, ' Looking to the above position of fact and law it would be fertile exercise to proceed with the matter further more there would be no fate of the application under section 11-A of the Standing Orders Ordinance, 1968 and nothing else would come out intercept that the prayer of the applicant with consent of the respondent, looking and considering all facts of the case, be allowed. Therefore it would be in the fitness of things, fair play and justice to dispose of the petition without further keeping pending. The petition under section 11-A of the Standing Orders Ordinance, 1968 is therefore allowed as prayed.
22. ' The parties are left to bear their own cost. Announced in open Court, this 5th day of October, 2000.