' This petition under section 22-A(B)(g) of I.R.O., 1969 was filed by Dilber Khan son of Abdul Qadir against M/s. Ghazi Barotha Contractors Tarbela through its Administration and Finance Manager on 25-2-2000 with the following prayer:-- "that this Commission may take necessary steps so that the right of the petitioner to remain in the employment of the respondent is duly protected and safeguarded and he is restored to his job which has been denied to him for his participation in the legitimate trade union activities".
2. The petitioner by way of this petition has alleged:-
(I) that the petitioner is an Ex-Serviceman of the Pakistan Army and possesses specialized experience of Physical Training. It is further submitted that the petitioner was employed as Physical Training Instructor in the G.B.C. International School Tarbela with effect from 1-10-1997, initially on probation for a period of six months, which period the petitioner had satisfactorily completed.
(II) that the respondent being the Administration and Finance Manager controls administrative affairs and fiscal matters of the G.B.C. International School, Tarbela, which is owned and run by the Ghazi Barotha Coniractors and an integral part of the work place of the said Contractors and as such covered by the West Pakistan Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968. It is further submitted that the petitioner is a workman by reason of the nature of work as envisaged in section 2(1) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 read with clause (XXVIII) of section 2 of I.R.O., 1969.
(III) that the petitioner is a strong supporter of the. Awami Labour Union Ghazi Barotha Contractors and as a front man of the said union in the aforesaid School, the petitioner has mobilized his resources to muster support of the School employees (about 30 in number) so that they join the union as members with the sole object of protecting their rights and interests as enshrined in the Labour Laws applicable to the G.B.C. (A certificate issued by the General Secretary of the union that the petitioner has been victimized by the management on account of his trade union activities is at Annexure-B of the petition).
(IV) that while the petitioner was contemplating to take overt acts, the plan conceived by him for the benefit of the School employees had leaked out and percolated to the management of the respondent, who became hostile and inimical to the petitioner. The respondent had expressed his deep concern to the petitioner on several occasions and had advised to abstain from accomplishing his move designed to identify the manpower structure in the School with the Awami Labour Union. It is next alleged that as a first step to injure the petitioner's employment, a warning letter was issued on 2-11-1999 in respect of the so-called act of misconduct allegedly committed by the petitioner on 14-9-1999 while the warning letter does not spell out any details of the alleged misconduct and also it suffers from reasonable proximity in point of time between the Commission of alleged act of misconduct and they warning letter issued. It is further contended that on 14-9- 1999 the petitioner was on leave, duly sanctioned by the principal of the School 'as mentioned in the Pay-Slip for the month of September, 1999, It is next alleged that in furtherance of the disposition of the management towards the petitioner which had undergone abrupt change and culminated into animosity for his practical support for the Awami Labour. Union, the services of the petitioner were suddently terminated on 29-1-2000. The letter of termination says that the services of the petitioner are no longer required, but without assigning any reason which omission is not recognized, by Order 12(1) and (3) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. It if further contended that the post held by the petitioner does not permit redundancy so long as the school functions while on the other hand the respondent has initiated action for recruitment of another Physical Training Instructor.
(v) that the respondent had made up his mind and determined to get rid of the petitioner by hook or crook and the manner adopted by the respondent prove that services of the petitioner were terminated in violation of the law and in a hot haste which tantamounts to Unfair Labour Practice within the meaning of section 15(1)(d)(II) of I.R.O, 1969 and demands that this Commission may deal with the matter as envisaged in section 22-A(8)(g) of I.R.O., 1969.
3. This petition was placed before the then learned Member Mr. Muhammad Akbar on 26-2-2000 and notice of the petition was issued to the respondent. The respondent while filing his written statement has resisted and vehemently opposed the petition by raising inter alia certain legal objections regarding maintainability of the petition. On merits the respondents also controverted the allegations made by the petitioner.
4. In his written statement, the respondent has emphatically denied the allegation and contended that the petitioner has no locus standi and no cause of action to file the instant petition. It is further contended that no case of unfair labour practice has been made out by the petitioner, hence the petitioner is liable to the dismissed in limine. In para 4 of his written statement, the respondent has contended that the petitioner is not covered by the definition of workman as laid down under the West Pakistan Industrial and Commercial Employment (Standing Order) Ordinance, 1968 and I.R.O., 1969. In para 6, it is further contended, that being a teaching staff of the School, the petitioner cannot invoke jurisdiction of this Commission under the I.R.O., 1969. It is next contended that the impugned termination order has no relevance and nexus with the story fabricated by the petitioner and the allegations are baseless and misleading. The respondent has emphatically denied that the impugned termination order has been passed on account of trade union activities of the petitioner. The respondent has prayed that the petition being devoid of any merits and based on misleading averments be dismissed with cost.
5. Both the parties adduced their evidence through affidavits in evidence. Petitioner has filed affidavit in evidence in support of his contention. He was cross-examined by the learned counsel for the respondents. Similarly on behalf of the respondent, Mr. Nuh Nabi Butt Senior Legal Officer of Gazi Barotha Contractors has filed his affidavit in evidence. He was cross-examined by the learned counsel for the petitioner.
6. In his affidavit in evidence, Mr. Nur Babi Butt has asserted that the petitioner was employed as Physical Traning Instructor in G.B.C. International School Tarbela and his services were terminated w,e,f, 30-1-2000 in accordance with clause 4 of his appointment letter. It was further stated that the petitioner was the only Physical Training Instructor in the School, hence there was no question of Seniority/Junrority involved in his termination. It was further stated that the petitioner was never remained office-bearer of the union and therefore he has no locus standi and cause of action of. File this petition. It was further asserted that the project of Ghazi Barotha Hydro Power Project being executed by the Respondent-Company for the Federal Government is of limited duration and the remaining work shall be completed within the next 6 to 12 months and by the time the project is completed, all the employees currently on the Pay roll of the Respondent- Company shall be gradually terminated. It is next asserted that G..B.C. International School, Tarbela which was an independent section of the respondent project has now been completely closed and all the staff employed in the said school have since been terminated.
7. Arguments were heard. I have gone through the pleading of the parties and their respective versions and also examined record of the case minutely. Though in para-12 of his affidavit in evidence, the petitioner has alleged that the impugned termination order was the result of victimization on account of his trade union activities, which constitute Unfair Labour Practice on the part of the respondent, but during his cross-examination he stated in the following words:- ".It is correct that terms of my appointment letter as contained in Exh. P.W./I were binding on me as well as on G.B.0 "
" It is correct that I was part of the G.P.C. International School Staff..
"I was supporter of the union, but I was not office-bearer of the union."
" ..It is correct that I have not made any specific allegation of unfair labour practice against the respondent.."
"..It is correct that the respondent-Company has closed G.B.C. International School Tarbela on 22- 3-2002 where I was employed.......".
"..Under the law no union can be formed in a School, Voluntarily states that the G.P.C. International School was attached with the project of G.B.C. And was an integral part of the Project..
8. Since claim of the petitioner that he was victimized on account of his trade union activities is contrary to the admission made by him during his cross-examination that he is not office-bearer of the union and has not made any specific allegation of unfair labour practice against the management, therefore this Commission has no jurisdiction to deal with the instant case. The gist of the arguments of the learned counsel for the respondent is that the law does not confer a general jurisdiction upon the Commission except where the employer commits or is likely to commit an act of unfair labour practice as defined under section 15 of I.R.O, 1969. He further contended that though malice or mala fides actions constitute a strong ingredient of Unfair labour practice, but only malice does not constitute unfair labour practice. He also repelled contention of the petitioner that his termination was motivated due to his trade union activities and contended that the impugned termination order has been passed in term of clause-4 of his appointment letter (Exh. P.W.1) and it has nothing to do with the so called trade union activities of the petitioner and therefore this Commission has no jurisdiction. In this connection he placed reliance on a Judgment reported in 1994 PLC 306 wherein it was held that jurisdiction of this Commission being restricted and limited to cases based on allegation of unfair labour practice.
9. Arguments were also heard on the objections raised by the respondents regarding maintainability of the petition and jurisdiction of this Commission. Learned counsel for the respondents has submitted that this Commission has no jurisdiction to deal with the case of the petitioner as he was employed as Physical Training Instructor in the G.B.C. International School Trabela Purely on temporary basis as laid down under clauses 15 & 19 of the appointment letter (Exh. P.W/I) which reads as follows:-- "You may be retrenched on account of reduction of work, reorganization or as a measure of economy. Retrenchment will be categorywise/section-wise and not on the basis of the whole company. Your section has been determined in this letter of appointment, but can be modified according to the company requirements".
"You are hereby made aware that your employment in the Company in connection with the work undertaken is not of a permanent nature".
10. He further submitted that the project of Ghazi Barotha Hydro Power Project is of limited duration and its work is not of permanent nature, therefore all its employees are temporary worker and accordingly cannot claim protection of Standing Order Ordinance, 1968 and I.R.O., 1969. In this connection he sought reliance upon the judgment of Honourable Supreme Court in the case of Muhammad Yactoob versus The Punjab labour Court No,1 & 5 others (1990 SCMR 1539) in which it was held that:- "In order to get the benefit of the Standing Orders Ordinance in the matter of termination of service, the Petitioner had to show that he was permanent workman. A permanent workman has been defined in the Standing Orders Ordinance by reference to the nature of the work on which he has been engaged or employed. If the work is not of a permanent nature, then howsoever long may be his employment, he cannot be taken to be a permanent workman".
11. He further contended that being an educational institution G.B.C. International School Tarbela is not an industrial concern and therefore provisions of Standing Orders (Ordinance) 1968 and I.R.O, 1969 are not applicable to it. In this connection he placed reliance upon the judgment of Honourable Supreme Court of Pakistan in the case of Board of Governers Aitchison College Lahore versus Punjab Labour Appellate Tribunal and others (2001 PLC 589) wherein it was held that:- "A careful study of the provisions referred to hereinbefore persuades us to hold that to invoke the jurisdiction of Presiding Officer under section 25-A, I.R.O., it is essential for an employee the provisions of the Ordinance or the I.R.O. And his grievance relates to an industrial dispute meaning thereby that an industrial dispute can arise only when such aggrieved person is connected with an industry or industrial establishment therefore both expressions industry or industrial establishment require interpretation in their origin and true sense to ascertain as to whether institution imparting education falls within the definition of industry or industrial establishment. This Court in the case of Ahmad Sadiq v. Chief Settlement Commissioner (PLD 1974 SC 368) has interpreted the word "industry" as follows:-- "The basic concept of industry or its derivative industrial undertaking is that there must be joint economic endeavour of the employer and the employee, to produce wealth or reader services. In other words, what comes out of an industry' must be the result of combined effort of both the capital and the workmen and must be distinguished from what is commonly known as business or trade. In the case of industry, the relationship of employer and employee is not that of a mere master and servant".
"Taking into consideration the above definition of word "industry" without any fear of doubt it can safely be held that the institutions responsible for imparting education like the appellant's organization does not fall within the definition of industry. At this stage reference advantageously can also be made to the University, of Delhi and another v. Ram Nath and others." (AIR 1963 SC 1873).
"With reference to the facts of the case of K.G. Old (Supra), it may be noted that said institution was engaged in offering technical education in the field of woodwork, sheetmental welding, electrician etc., and it had its own workshop but despite of that it was held that it is an educational institution and training establishment and if it is maintaining an industrial unit (workshop) rendering services on payment, adverting its products, it is an incidence of vocational education and of training programme designed to ensure job opportunities to the trainees. Therefore, what is incidental to the main purpose cannot detract in any manner, from its being an educational institution. Applying this test on the facts in hand we fell no difficulty in concluding that appellant's organization is neither an industry nor if falls within the definition of industrial establishment, therefore, its employees cannot be considered to be worker or workman either under I.R.O. Or Ordinance."
' Learned Counsel for the respondent has further contended that the aforesaid School has been completely closed since 22-3-2002.
12. On the other hand learned Counsel for the petitioner has contended that the petitioner was a permanent workman employed by the respondent against a permanent post and his services were terminated by letter dated 29-1-2000 without showing any reason in violation of Orders 12(1) & 3 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance 1968, only on account of his trade union activities which tentamounts to unfair labour practice within the meaning of section 15(1)(d)(ii) of I.R.O., 1969 and therefore this Commission has the jurisdiction to entertain this petition. In this behalf he placed reliance upon the judgment reported in 1992 PLC
665. He also repelled the contention of the respondents that being an educational institution, the G.B.C. Internional School is not an industrial concern and therefore provision of Standing Orders Ordinance 1968 and I.R.O. 1969 are not applicable to it and contended that G.B.C. International School is part of the Project therefore all labour laws are applicable to the employees of the said school. Learned counsel in this behalf has referred to the case of K.D. Old Principal Christian Technical Training Centre Gujranwala v. Punjab Labour Court, Northern Zone and 6 others (PLD 1976 Lahore 1097), the case of Mrs. S.M. Gill v. M/s. Tarbela Joint Venture (1977 PLC 133) and the case reported in 1992 PLC 1090.
13. I have given my anxious consideration to the submissions made by the learned counsel for the petitioner and the respondent regarding allegations of unfair labour practice. I could not bring myself to agree with the petitioner that his case is based on allegations of unfair labour practice.
Although in para 6 of his affidavit in evidence the petitioner claims that he was a strong supporter of the Awami Labour Union Ghazi Barotha Contractors and being the frontman of the said union in the aforesaid School he had mobilized the School employees to become member of the said union, but the certificate issued by the General Secretary of the aforesaid union (at Annex-B of the petition) is silent even about his own membership of the union. He miserably failed to establish a single trade union activity which would annoy the respondent to such an extent that they would go out of their way to victimize the petitioner. Particularly when the petitioner was neither member nor officer-bearer of the said union. Similarly in the absence of any specific allegation of unfair labour practice against the respondent (As admitted by him during his cross-examination that it is correct that I have not made any specific allegation of unfair labour practice against the respondent), it cannot be believed that the petitioner was victimized by the respondent management on account of his trade union activities. Services of the petitioner were terminated vide letter dated 29-1-2000 in terms of clause 4 of the Service agreement, which provide that after satisfactory completion of the probation period, each party can terminate the agreement by giving one month notice to the other party or pay in lieu threof. In case of dismissal from service for misconduct, no notice or pay in lieu thereof will be paid. Therefore the act of termination of services of the petitioner cannot form basis for holding that the respondent committed an act of unfair labour practice. It may pertinently be mentioned that even in his reply dated 8-1-1999 to the Warning letter dated 2-11-1999, of the management, there is no mention that the petitioner was being victimized on account of his trade union activities, while on the other hand in his cross- examination the petitioner admitted that:-- " It is correct that terms of my appointment letter as contained in Exh. P.W./I were binding on me as well as on G.B.C....".
It is correct that I have not made any specific allegation of unfair labour practice against the respondent".
' Though learned counsel for the petitioner has cited so may irregularities in the termination letter and also cited so many citations, but the same are pointless because the Commission would acquire jurisdiction only if it is shown that labour practice has been committed.
14. It has been rightly contended on behalf of the respondent that in the instant case the basic issue against which the petitioner feels aggrieved is his termination from service, therefore the Commission has no jurisdiction to interfere into the matter, because jurisdiction of this Commission is restricted and limited to the cases based on allegation of unfair labour practice. According to law as laid down by the Hon'ble Supreme Court of Pakistan in the case of Iftikhar Ahmad PLD 1988 SC 53 following in 1991 PLC 876, 1988 PLC 923, 1988 PLC 419 and 1994 PLC 31, this Commissior has jurisdiction to interfere only if a case falls within the ambit of section 15 of I.R.O, 1969 and nothing beyond that. This provisions of law provides redress of grievance as arising out of victimization on account of trade union activities only. No other victimization even if proved is actionable by this Commission in exercise of jurisdiction cited by section 22-A (8)(g) of the I.R.O., 1969. In this regard it would be appropriate to quote the dictum of a Full Bench of this Commission in the appeal case, of Nazar Muhammad General Manager T.I.P. Haripur and another v. Ghulam Asghar and 4 others 1988 PLC 923 at P.926 which places its reliance on a judgment of Honourable Supreme Court:-- " The Commission's jurisdiction will extend not because of illegality or irregularity in the action taken by the management but upon evidence that such action impugned upon the provision of section 15 of the I.R.O., In a recent judgment in Iftikhar Ahmed, Vice President, National Bank of Pakistan and others (Civil Appeal No,221 of 1985 PLD 1988 SC 53 and other appeals), the Supreme Court observed: ' It will, therefore, appear that the cases which the Benches are empowered to hear under the clause must have an element of unfair labour practice in them, it does not encompass cases where allegation of unfair labour practice is made. It may be mentioned that section 15 and 16 of the Ordinance set out instance of unfair labour practice on the part of the employer as well as workers. It is therefore not right to construe the clause in question as conferring a general jurisdiction upon the Benches to entertain all kinds of grievance petitions even though they may not be relatable to unfair labour practce...."
' Another judgment on the same subject was also delivered in the case of National Motors Limited v. Muhammad Hanif 1987 PLC 547 at page 550 when Mr. Justice (Rtd.) M.S.H. Qureshi, the then learned Chairman of this Commission, delivering the judgment for the Full Bench of the N.I.R.C., laid down the duties and functions of the Commission in the matters arising out of disciplinary action against the workers as follows:-- "It is necessary to state clearly the duties and functions of this Commission in matters arising out of disciplinary action against workers. In such matter the National Industrial Relations Commission does not, sit in judgment over the action of management against workers as an appellate forum.
The Commission is not concerned with the deficiency if any of law or fact in the aetion and will not set aside the Management's decision merely upon a finding of error in the procedure adopted or for want of sufficiency of evidence upon which the action proceeds. Nor will the Commission interfere only because the action requires correction. They may be the functions of the forum acting under section 25-A of the I.R.O., 1969. The Commission's jurisdiction is and as has rightly been invoked in this case. Under clause (g) of subsection (8) of section 22-A of the I.R.O., 1969, upon allegation of unfair labour practice. In proceedings under this clause, the Commission has to examine, if the Management was motivated by any of the considerations enumerated in section 15(1). For this purpose, the Commission may also scrutinize, if the management's action was based upon no evidence or upon misreading of evidence or was perverse to the evidence or was in colourable exercise of power. For, that, if established will detract from the bona fides of the Management and may lend credibility to the allegation of unfair act. But by itself, this will not be sufficient for reaching a finding of unfair act unless one or more of the ingredients of section 15, which sets out what constitutes unfair labour practice on the part of employer, stands proved independently by factual or circumstantial evidence. The examination of the Management's action is therefore, only collateral, and a mere finding against the correctness of the action will not per se establish unfair labour practice within the meaning of section 15.
15. In this view of the matter while determining whether an unfair labour practice has been committed or not the allegation that the termination letter dated 29-1-2000 violated the most basic tenets of law on the subject would be foreign for consideration by this Bench unless the element of unfair labour practice is first proved to be present. The Commission therefore has no jurisdiction to interfere, unless action of the management is found to have been initiated by way of victimization or unfair labour practice.
16. As discussed above, on a minute examination of the pleadings of the parties and their respective versions, I find that the petitioner failed in proving that on account of his trade union activities his services were terminated by way of unfair labour practice as defined under section 15 of I.R.O.
1969. He has failed to quote any specific instance of lawful trade union activities, but has repeated his allegations of being victimized due to trade union activities. Mere bald allegations of unfair labour practice are not sufficient to prove victimization and make amenable for interference by the Commission, in the circumstances the relief prayed for cannot be granted.
17. To determine the controversy regarding applicability of the provision of I.R.O., 1969 and the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 to the G.B.C.
International School Tarbela, I have given my anxious consideration to the submissions made by the learned counsel for the petitioner and the respondent. In the instant case, it is an admitted position that the G.B.C. International School is an educational institution involved in imparting education and being an independent section of the project has a separate entity. The question whether educational institutions are covered by the provisions of I.R.O., 1969 and West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 has been examined in a number of proceedings by the superior Courts and it has been repeatedly held that any institution where education is imparted will not be covered by the Labour Laws. Reliance can safely be placed upon the judgment of the Honourable Supreme Court of Pakistan in the case of Board of Governors Aitchisan College Lahore v. Punjab Labour Appellate Tribunal and others (2001 PLC 589).
In this context of the matter, I therefore, see no reason to have a different interpretation, accordingly, I have no hesitation in holding that the G.B.C. International School being an independent section of the Ghazi Barotha Contractors is not covered by the term Industry, thus the petitioner does not fall within the definition of worker as defined under section 2(XXVIII) of I.R.O., 1969 or under section 2(1) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 as such he has no entitlement to invoke the jurisdiction of this Commission.
18. Upshot of the above discussion is that the petitioner fails in proving his case, I therefore, no hesitation in holding that this Commission have no jurisdiction to deal with this petition, which is hereby dismissed. Parties are directed to bear their own costs. File is consigned to record. #EndJudgment