' This is an application under section 25-A of the I. R.
0., 1969, made by the petitioner, Zakir Hussain through Mr. Mohammad Ejaz, General Secretary, "Pakistan Spencers Employees' Union," requesting the Commission that his dismissal orders dated the 19-7-1976 passed by the respondent No, 2 may kindly be set aside and the petitioner be re- instated with all his back befits etc.
2. With brevity, the facts of the case, as disclosed by the petitioner, are, that the petitioner was appointed as a General Clerk at Sukkur Depot of the Spencers & Co. (Pakistan) Ltd. On 13-10-1971 by one Mr. I. H. Hafiz, Manager Pharmaceutical, Karachi, (presently Marketing Manager). The other members of the Staff were also appointed by the said Officer including one Mr. Mohammad Yousuf, the Branch Manager, on the same date and under the same ('C' Grade) and thus the appointing authority of the petitioner and the respondent No, 2 was one and the same on the date of appointment. On 23rd March, 1972, the Petitioner was confirmed and was also promoted as a Salesman while the said Mr. Mohammad Yousuf was promoted as a Branch Manager in the month of November, 1973, for Sukkur Branch. As per averment of the petitioner, he joined in the year, 1973, the Pakistan Spencers Employees' Union (Regd.), Rawalpindi. He also became a member of the Union's General Council as well as Member, Works Council and as per his averments this was the starting point for his victimization and harassment by the Management. In sub-clauses (a) to (f) to para. 3 of his petition, the petitioner has enumerated some of the specific instances which, according to him amount to victimization and harassment. In furtherance thereof, the petitioner was suddenly dislodged from his home and his family as the respondent No, 1 transferred him vide a letter dated 21st February, 1976 (Annex. 'M') from Sukkur to Nawabshah with effect from 1st March 1976, although there was no Branch of the Co. At Nawabshah at that particular time. Thereupon the petitioner made a representation on 21-2-1976 to the Management. This representation was replied to on 24-3-1976 which was duly received by the petitioner on 30.3-1976, rejecting the representation. On 27-3-1976, the petitioner was directed by the respondent to appear before a Medical Board on 30.3-1976. The petitioner did appear before the Medical Board on the said day and resumed his duty on. 3-4-1976. At that time the respondent No, 2 used filthy and abusive language against him and the matter was reported by the petitioner to the respondent No, 1 through a Telegram. No enquiry however, was initiated on the telegram sent by the petitioner against respondent No,
2. Instead, a charge-sheet was issued on 28.4-1976 by the respondent No, 2 while the petitioner was at Nawabshah. The charge-sheet was to the effect that the petitioner was avoiding to obey transfer order from joining on the pretext of leave on medical ground. The charge-sheet is available on Annex. 'S' filed with the petition and bearing the date 28-4-1976, As stated by the petitioner in paragraph 11 of his petition a so-caged notice of grievance under section 25-A of the 1. R.
0., 1969, was sent by him immediately on 6-5-1976. An enquiry was held into the charges, a second show-cause notice issued on 15-6-1976 which was replied to by the petitioner on 10.7-1976 but which did not find favour with the Management and the petitioner was finally dismissed from service with effect from 19-7-1976. In para. 17 of his petition, the petitioner mentions that a grievance notice under section 25-A of the I.R.O., was given him to the Management on 2-10.1976 and eventually he could not get any redress from the Manngement. Accordingly, a petition/ complaint was filed before the Commission on 21-7-1976 which complaint/ petition was dismissed by the learned Senior Member vide Annexure 'A' filed by the respondents with their comments.
3. On the case having been placed before me, notices were issued to the respondents who filed their comments taking various preliminary objections. While other objections were not seriously urged by the respondent, much stress however, was placed upon objection No, 4 to the effect that an identical application under section 25-A (6) of the I. R. 0 , 1969 was filed by the applicant on 21- 7-1976 before the Commission bearing case No, 4 (199)/76-N. I. R. C. Which was dismissed by the learned Senior Member, Mr. Mamoon A. Kazi, vide his order pronounced on 16-10.1976, saying that the matter could not be agitated again on the same ground. Likewise, objection No, 5 was taken that under a "Settlement", the demand for reinstatement of the petitioner was waived by the Union and that the question of his re-instatement was a past and closed transaction. The third objection (No, 6) was that the application was hopelessly time-barred and liable to be dismissed on this score alone.
4. Parties were heard, entire record gone through and the matter argued at length. The Representative appearing for the respondents drew my attention to Annex. 'A' filed with the comments which is an order by the learned Senior Member dismissing the complaint of the petitioner. On a query having been made from the learned counsel for the petitioner, Mr. Akhtar Ali Khawaja, Advocate, submitted that the order pertained to a combined complaint-cum-petition filed on 21-1976, but as per his statement, he was directed by the then learned Chairman to split up that application into two different applications/petitions the one dealing with the criminal offence of unfair Labour Practice and the other, being of civil nature for the petitioner's re-instatement to his job. He argued that the order dated 16-10-1976 pertains only to the criminal complaint of unfair labour practice while the present petition was under the provisions of section 25-A of the I. R.
0., 1969. I tried my level best to find out the direction/advice of the then learned Chairman asking the petitioner to file two separate applications petitions but could not lay my hands on it. It is also strange to note that there is no application either on behalf of the petitioner seeking permission of the Commission to modify/amend the said complaint. On the other hand, I find a photostat copy of Annex. 'D' filed with comments of the respondents. Caption of this application is "application under section 25-A (6) of the I.R.O., 1969". Considerable magnitude of the importance of prayer clause cannot easily be ignored either. The prayer in Petition No, 4(199)/76-N.I.R.C. Is to the following effect :- "In the circumstances it is respectfully prayed that the order of dismissal passed by the respondent No, 2 may kindly be set aside and the petitioner may be ordered to be re-instated with all his back benefits. It is further prayed that the respondents may be punished according to the law."
5. It is thus clear that contents of the petition before me (No, 17(3)176) and those of already disposed of (4(199)/76), caption of the petitions and prayer clauses therein have remarkable resemblances and are 'corresponding' and 'identical' to each other and, if they can not be treated as 'corresponding' and 'identical' then I am afraid, no authorities drawn from even the foreign superior Courts and Tribunals could ever convince the unconvinced. As the petitioner has failed to meet this objection successfully, the objection has to be upheld.
6. Assuming the petitioner was so directed by the said learned Chair- man, the alleged direction should have been given or issued on or about 21-7-1976 when the complaint ewes-petition is alleged to have been filed whereas the present petition was filed on 16-10-1976, after a lapse of 86 days of the date of institution of the disposed of complaint. The petitioner was required under law to have filed the said petition within two month's time of the order of termination of the petitioner's employment which he failed to do. The contention of the learned counsel for the petitioner that his case was covered by sub-clause (1) of section 25-A of the I. R.
0., 1969, and not by sub-clause (6) of the aforesaid section, is not tenable. Learned Counsel for the petitioner, has failed to appreciate that sub-clauses (6) and (7) were added by Act XXIX of 1973 to the statute and therefore, these added sections had the overriding effect and are to be strictly followed. I cannot agree with the learned counsel for the petitioner as to how, in view of subsection
(i) of Regulation 32 of National Industrial Relations Commission (Procedure and Functions)
Regulations, 1973, the then learned Chairman advised or directed the petitioner to file two separate applications/petitions. For purposes of disposing of this point, a particular attention to the aforesaid Regulation is necessary. It is reproduced hereinunder t-
(i) Where an unfair labour practice has been committed, and the case falls under section 25-A, section 34 or section 53, as the case may be, the Commission may deal with the case under that section: ' Provided that the Commission while awarding punishment under section 51, may also direct the re-instatement of a worker and &low consequential benefits to him.
7. A cursory reading of this provision shows that while awarding sentence upon the management the Commission could simultaneously also direct the re-instatement of the worker and allow consequential benefits as well.
8. Thus it would be observed that, assuming such an advice direction was ever tendered or given by any authority how high sever he might be placed, inconsistent with the provisions of substantive law, the advice or direction tendered or given cannot come to the rescue of the petitioner either as he was ill-advised and on that premises is making an abortive attempt to seek redress.
Accordingly, I am of the view that the present petition is time-barred.
9. Further assuming, for arguments sake that the petition is within time then, the petitioner has to cross another hurdle as pointed out by the respondents in their comments in para. 5 vide Annexure 'B' attached there with, One Mr. Mohammad Ejaz, General Secretary of the Pakistan Spencer's Employees' Union (C.B.A.) and who is pursuing the cause before this Bench of the Commission on behalf of the petitioner, during the pendency of the alleged combined complaint-cum-petition, on 17-10-1976 submitted a Charter of Demands under section 26 of the I.R.O., 1969, to the respondents and the demands, inter alia contained the demand for re-instatement of Mr. Zakir Hussain (the present petitioner) (Demand No, 1 (c). This demand however, at the time of arriving at a settlement, was withdrawn. Photostat copy of this memorandum of Settlement Annexure 'C' filed with the comments of the respondents clearly proves this fact. This memorandum of settlement is signed by both the parties and was signed when the previous petition (Complaint No, 4 (199)/76) was pending. As per agreement this settlement was to take effect from 1st July, 1976 and was to remain into force until 30th June, 1978 whereby it was additionally agreed upon that no further demands under heads already agreed upon or withdrawn shall be raised or condsidered during the validity of this agreement. It was argued on behalf of the petitioner that the petitioner was not bound by the terms of this memorandum of settlement as he was not a party to these proceedings because at the time when this agreement was signed (15-1-76) the petitioner was no more in the employ of the respondent. This is not a correct appreciation of the law. Section 39 of the I.R.O., 1969 is clear on the point. It is desirable to reproduce the provisions of section 39 of the I.R.O., 1969 which reads as under :-
39. Settlement and awards 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 published under section 31, or an award or decision of a Labour Court delivered under section 37 (or the decision of a Tribunal under section 38) shall-
(a) be binding on all 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 that dis 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 an 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.
Thus, it would be observed that (d) of sub-clause (1) of section 39 of the I.R.O., 1969 provides that the settlement shall be binding on all workmen who were employed in the establishment to which the industrial dispute relates on the date on which the dispute first arose or who are employed therein after that date. Further the definition of 'worker" and "workman" as given in section 2(xxviii) of the I. R. O., 1969, in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, hid-off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay-off or removal has led to that dispute.
10. The terms of settlement being binding upon the petitioner and his Agent, Mr. Mohammad Ejaz, General Secretary, they are estopped from agitating the issue once again.
11. In the end, I feel that it would not be proper if I refrain from making a reference to the citations given by the learned counsel for the petitioner in support of his me, but the dicta in different cases in those authoritative judgments are not attracted to the facts of this case and the rule(s)/is/are not apposite to the points raised before me.
12. In my opinion, the material available on record before me is sufficient to warrant dismissal of the petition. Accordingly.