' The petitioner namely Hashmi Can Company Employees Union have filed this petition against the respondents-Company under section 22-A(8)(g) of the I.R.O., 1969 and alongwith it have filed an application under Regulation 32(2)(c) of N.I.R.C. (P&F) of Regulations, 1973.. The brief facts on the basis of which the petitioner have filed this petition are as under:
2. That the petitioner is registered union with the Registrar of Trade Unions, Sindh and the respondent is Industrial Concern and employs more than 200 employees. The petitio9ers have alleged that the respondents in order to crush the union of the petitioner attempted to close down their establishment in the year 1995 by filing application before the Labour Court for permission to close down their- establishment but subsequently they withdrew that application because the factory was running into profit. Thereafter the respondents again filed application under section 11- A of West Pakistan Industrial Commercial. Employment (Standing Orders) Ordinance, 1968 before' the Labour Court .For permission to close down their establishment where the learned Labour Court after recording the evidence and hearing the arguments of learned Advocates for the parties granted permission to the respondents to close down their establishment. It is further alleged by the petitioner that after receipt of this order of Labour Court, the respondents at one stroke terminated the services of 381 workers and retained only few in the name of Food Plant but in fact after closure of establishment Tin Plant continued to function. The petitioner-union has alleged that some of the retrenched employees filed grievance petition before the Labour Court where they are pending while other, waited for their turn for re-employment in the said company. The petitioner- union has alleged that they had made complaints at various authorities that although the factory was running in profits, there was no need to close down the establishment and the establishment was sought to be, closed just for the purpose of getting rid of the members of the union and the officers took note of this. They have alleged that previously the factory was ruining in shifts but after the closure and by appointment of new employees it is functioning round the clock and in overtime and even on public holidays. The main grievance of the petitioner is that the respondents are employing fresh employees but are refusing to employ retrenched employees which are acts of unfair labour practice on the part of respondents. The petitioners have prayed for following prayer:--
(1) to declare the acts of the respondents as of unfair labour practice and to prevent them from further acts of unfair labour practice,
(2) direct the respondents to employ the workers from retrenched workers,
(3) restrain the respondents from harassing, threatening or victimizing the member and office bearers of the petitioner-union.
3. The respondents filed their written comments in which they have denied the various allegations of the petitioner-union. They have denied that they have closed down their establishment for the purpose of getting rid of the petitioner-union and. Its office-bearers. They have denied that company of the respondents was running in profits. They however stated that since the company was running in to huge losses, hence they filed application under section 11-A of the Standing Orders Ordinance before the Labour Court but later on. On the assurance of the union they withdrew the application but when same condition prevailed they again approached the Labour Court for closing clown the establishment and Labour Court after recording evidence of both the parties and after hearing full fledge arguments passed the judgment whereby the application under section 11-A was allowed and permission was granted to close down the establishment. They have stated that it does not lie in the mouth of the petitioner to say that order of closure of establishment was passed by Labour Court with a view to get rid of the petitioner-union as it amounts to contempt of Court because the Court passed that order keeping in view all these facts and circumstances and submissions of the petitioner-union. They have denied that they are re- employing fresh employees in the establishment but they have clarified that they have appointed some employees through contractor and that they have not re-employed fresh employees by themselves.
4. The respondents took various legal pleas that the petitioner-union is an illegally constituted body as the union consists of more than 25% outsiders therefore the respondents had moved the Registrar of Trade Unions to apply to the Labour Court for cancellation of the union, that the petitioner-union has no right to canvass or espouse the causes of the workers, that the petitioners have sought declaration from this Court which is outside the scope and purview of this Court to grant such prayer, that individual workers have invoked the jurisdiction of Labour Court for re- instatement in Service, hence this petition also in not maintainable, that the petitioners have failed to give the instances of unfair labour practice on the part of respondents, hence also the petition is not maintainable.
5. I have heard the learned Advocate for the petitioner and learned Advocate for the respondents. I have gone through the pleadings of the parties and the documents attached thereto.
6. In the first instance I would like to deal with the preliminary legal objections of the learned Advocate for the respondents.
7. Learned Advocate for the respondents argued that the petitioner-union has no right .To espouse the causes of general workers whereas it can invoke the jurisdiction for the rights guaranteed to the C.B.A. Under section 34 of I.R.O.
1969. As against this learned Advocate for the petitioner argued that the union has approached this Court with prayer that the retrenched employees may be re-employed by the respondents and they should not re-employ fresh employees.
8. I have considered the arguments of learned Advocate for the parties. I am of the opinion that the petitioner-union has no right to espouse the causes of workers. It is for the individual workers to approach proper forum for redressal of their grievances. The petitioner-union has not filed affidavits of those persons who want to support this petition. It is not known if this petition has been filed with consent and concurrence of 381 workers who were retrenched. It might be construed that it is only the headache of few workers who want to harass and pressurize the respondent- management. In such circumstances the petitioner-union has no right to approach this Court for redressal of grievance of individual workers. It is only the individual workers to approach this Court for redressal of their grievances. Moreover some of the employees have approached the Labour Court for redressal of their grievances. In such circumstances this portion is not maintainable in law.
9. Learned Advocate for the respondents then argued that the petitioner-union is an illegally constituted, as it consists of more than 25% office-bearers who are outsiders. He argued that the respondents have written three letters to the Registrar of Trade Unions, Karachi dated 26-8-1999, 25-5-2000 and 5-8-2000 for moving the Labour Court for cancellation of the union, which letters are pending with the Registrar of Trade Unions. This position was not denied or disputed by the learned Advocate for the petitioner.
' Although on this complaint the Registrar has not moved to the Labour Court for the cancellation of the union but there is cloud over the legitimacy of union of the petitioner. Till the Registrar decides the application of the respondent-company whether the petitioner-union is legally constituted body or not, petitioner should not espouse the causes of their workers. Either they should get their title declared from the Registrar or to wait for the decision of the Registrar of Trade Unions.
10. It was then argued by the learned Advocate for the respondents that the prayers of the petitioner fall beyond the scope and jurisdiction of this Court. He argued that the N.I.R.C. Has the jurisdiction to prevent the occurrence of unfair labour practice but has absolutely no jurisdiction to give declaration for any purpose. He argued that the petitioners have approached wrong forum in getting the relief.
11. Learned Advocate for the petitioners argued that this Court has the powers to give direction to the respondents if it appears to the Court that certain acts of unfair labour practice are being committed by the employer. He has argued that the petitioners have not sought for declaration but have sought for directions to the respondents to re--employ the retrenched employees and for directions to restrain the respondents from re-employing fresh employees instead of retrenched employees.
12. I have considered the arguments of learned Advocates for the parties but I am not satisfied with the arguments of learned Advocate for the petitioners. Directions sought by the petitioners are in the nature of declaration. First of all the Commission has to declare the acts of the respondents as acts of unfair labour practice and then it may give directions. The prayers of petitioners are beyond the scope and jurisdiction of this Court. This Commission has no jurisdiction to give directions to the respondents to re-employ the retrenched employees or to direct the respondents not to employ fresh employees, for this purpose retrenched employees have to approach proper Labour Court which passed the order of permission to close down the establishment. Either they should have approached the Labour Court No,1 Karachi for contempt of Court or for any criminal offences or they should approach the proper Labour Court for reinstatement in service on the ground of re- employment within one year of the retrenchment. This Court has absolutely no jurisdiction to deal with this case and to grant the prayers made by the petitioners.
13. Even otherwise the learned Advocate for the respondents argued that the respondents have not employed fresh employees but that employees have been appointed through contractor and therefore, there is no question of reemployment of any person. Be that, as it may even otherwise this question cannot be gone in to by this Commission. It is for the petitioners to challenge these questions before proper forum and that proper forum after taking into consideration these submissions can grant or not grant relief to the n-trenched employees.
14. Learned Advocate for the respondents then argued that the petitioners have not given any instance of unfair labour practice on the part of respondents therefore the petition is not maintainable. On the contrary the learned Advocate for the petitioners argued that the respondents by re- employing fresh employees and not employing from the retrenched employees have committed acts of unfair labour practice.
15. The arguments of learned Advocate for the petitioners have no force. These acts do not fall within the ambit of section 15 of I.R.O., 1969. If they have re-employed the employees then the remedy for the petitioners is to file contempt application or any other proceedings permissible by law before the Labour Court which granted permission to close down the establishment but on the basis of such prayers petition under section 22-A (8)(g) of I.R.O., cannot be filed. This petition therefore is without instance of unfair labour practice as such it is not maintainable.
' In view of the above discussed facts, circumstances and legal position I am of the view that the petition of the petitioners is not maintainable and this Court has no jurisdiction to deal with this petition, hence it is dismissed accordingly alongwith stay application.