' This common single order shall dispose of the above titled petitions (No,4A(38)/2001, No,4A(39)/2001 and No,4A(40)/2001 filed by the petitioners under section 22-A (8)(g) of the I.R.O., 1969, involving common questions of law and facts, wherein it has been prayed that the respondents be directed:--.
(a) not to commit acts of unfair labour practice against the petitioners;
(b) not to close down the factory or to terminate the employment of the petitioners; and
(c) to make the petitioners regular and permanent and grant them the same wages and other facilities as are applicable to the workers of their class under the labour laws.
2. Case of the petitioners as set out in their petitions is that the petitioners are employed in Fauji Metals, New Lalazar, Rawalpindi, which is a factory within the meaning of section 2(j) of the Factories Act, 1934 and is also an industrial establishment under section 2(f)(ii) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 as it is engaged in the manufacturing of Cylinders for "Fongas" for so many years. It is further contended that though the jobs of the petitioners are of permanent nature and previously were employed in permanent capacity and were also getting the same rights and privileges as applicable to the permanent workers under the Labour Laws, but three years back, the respondents have declared a nominal closure of the factory in papers and have terminated the services of the workers. Although the Factory has been continuously working, but about two years back, the petitioners were enrolled afresh on less wages with a view to deprive them of the facilities available under the Labour Laws.
At present 70 workers are employed and whose services have been secured under "The Provincial Employees Social Security Ordinance, 1965" against the Medical Coverage. It is further submitted that the respondents with a view to terminate the permanent workers have adopted illegal ways in the name of illegal closure of the Factory without permission of the Labour Court. As regards the allegation of unfair labour practice, it is asserted that when the petitioners decided to form a trade union and started a struggle for formation of the same in the name of Fauji Metals Labour Union, the respondents threatened the petitioners that they would not allow formation of any such trade union otherwise they should prepare themselves for unemployment in the shape of closure of the factory which according to the petitioners constitutes an act of unfair labour practice on the part of the respondents within the meaning of section 15 of the I.R.O, 1969.
3. The respondents while filing their written statement/parawise comments have resisted and opposed the petitions by raising inter alia some legal objections that the instant petitions are not maintainable as the Fauji Metals is a project of Fauji Foundation, which is exempted from the application of I.R.O., 1969 as laid down under section 1(3)(a) of the said Ordinance. Further the petitions in the present form are devoid of an element of unfair labour practice. The petitioners have no locus standi to form any trade union as they were temporary workers employed on daily wage basis just to meet the immediate demand of its sister concern. It was also averred that the petitioners were working purely on temporary basis after the closure of the factory in 1997 vide order dated 9-5-1997 passed by the Punjab Labour Court No,6. On merits, the respondents have also controverted the allegations made by the petitioners.
4. Arguments were heard on the objections raised by the respondents regarding maintainability of the petitions and stay applications and all the three stay applications were dismissed with the following observations:-- "Upshot of the above discussion is that the petitioners have failed to make out any prima facie case of unfair labour practice on the present record. Further the factory is already closed and presently none of the petitioners even on daily wages basis are in the employment of the respondents, therefore, all the above titled applications filed under Regulation 32(2) of N.I.R.C.
(Procedure and Functions) Regulations, 1973 are dismissed with no order as to costs. The main petition shall now come up on 16-10-2001 for petitioners' evidence in the form of their affidavits."
5. Both the parties adduced their evidence through affidavit in evidence. The representative for the petitioners has filed affidavit of one of the petitioners in each case. As all the three petitions are similar in nature involving common questions of law and facts, thus the affidavits in evidence filed by the petitioners are also similar in nature. Since all the affidavits in evidence were the same, therefore cross-examination of the witnesses was almost the same. Cross-examination recorded in case No,4A(38) of 2001 is reproduced below:-- "Fauji Foundation is the owner of Fauji Metals. Fauji Foundation is a huge organization which runs/owns so many projects and employed so many persons. It is correct that Fauji Foundation is a Charitable Trust. It is correct that the Fauji Foundation is run by a "Committee of Administration" consisting of serving Generals. I have no knowledge regarding the funds of Fauji Foundation whether these funds have any relation with the Armed Forces of Pakistan. The Fauji Metals is also providing gas cylinder to Pak-Gas, Walk Gas and there are so many other organizations/Companies but I do not remember their names.....I have not challenged the closure order dated 9-5-1997 of Labour Court, Rawalpindi before any superior Forum Before passing of closure order dated 9-5-1997 by the Labour Court Rawalpindi, I was permanent worker of Fauji Metals and I had received all my legal dues in compliance of that order and then the Factory was closed after passing the order of Labour Court at that time. For the second tenure, Fauji Metals has not issued me any appointment letter as worker. I have never received 30 days' pay during my second tenure as I was employed as daily wager. Voluntarily states that I had received pay of 27 days for some months. I have not filed any complaint before any judicial forum regarding my engagement as daily wager. We have not filed any application regarding formation and registration of any trade union before the Registrar of Trade Unions or any other forum. It is correct that I have mentioned the date 23-4-2000 in my affidavit in evidence that the factory has been closed by the management. It is incorrect that Fauji Metals is constantly causing loss because we were manufacturing cylinders till its closure. It is correct to suggest that manufacturing of cylinder is based on order for manufacturing of cylinders It is correct that we have requested this Court to make the petitioners as regular and permanent workers as the respondent is treating us as daily wages workers. It is also incorrect to suggest that we have no legal right to approach this Court for any relief."
6. On 14-6-2002 the respondents have filed affidavits in evidence of their witnesses namely Major (Retd.) Muhammad Aslam Khan and Subedar (Retd.) Muhammad Razzaq. On 4-9-2002 learned counsel for the respondents has filed an application seeking permission to replace one of their witness namely Major (Retd.) Aslam Khan who has been retired. Since the representative for the petitioners had got no objection, therefore the application was allowed and the case was fixed for filing affidavit in evidence of the new witness. On 26-9-2002 the respondents filed affidavit in evidence of Faisal Bashir, Admn. Officer in place of Major (Reted.) Aslam Khan and the case was fixed for cross-examination, but on 7-11-2002 another application was moved by the respondents seeking permission to replace the affidavit in evidence of Subedar (Retd.) Muhammad Razzaq and the said application for replacement of the witness was allowed. However again another application was filed by the respondents seeking permission to replace their witness namely Rizwan Nasim who left the respondents' establishment. The application was allowed on 6-2-2003 and the neW witness namely Maqsood Ali Shah filed his affidavit. But the respondents produced only one witness namely Muhammad Faisal Bashir and dropped the other witness. The contents of affidavits in evidence and cross-examination in all the three cases were almost the same.
7. In his cross-examination, the witness of the respondents Faisal Bashir stated that:- "the Fauji Metal, manufactured gas cylinders for "Fongas", "Fongas" sells the gas in the Market in these cylinders. The Gas cylinders were manufactured only for the "Fongas""It is correct that the petitioners were employed on regular basis till closure in the year, 1997 and thereafter they were engaged cn daily wages basis. Voluntarily states that since the petitioners were skilled persons, therefore they were engaged as daily wagers....The plant was restarted after May, 1997 but not on permanent basis. We do not supply cylinders in open market except to Fongas. Voluntarily states that Fongas filled the gas in cylinders and supply to their distributors It is incorrect to suggest that closure was effective only due to the reason that we wished to deprive the workers of their conditions of employment then prevailing. It is not in my knowledge whether any contribution was made to the EOBI. It is incorrect to suggest that the worker were deprived of their legal rights and work for lengthy hours was taken from them. It is incorrect to suggest that these workers were removed on account of their struggle to form a trade union. No permission has been taken from the Labour Court regarding closure of the factory in the year, 2001 because the factory was never working on regular basis. The petitioners were working to complete the work order placed by the Fongas from time to time on temporary basis."
8. I have heard the representative of the petitioners and learned counsel for the respondents at considerable length. While arguing his case, the representative of the petitioners has contended that the respondent's establishment namely Fauji Metals is a factory within the meaning of section 2(j) of the Factories Act, 1934 and also an industrial establishment as defined under section 2(f)(iii) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and involved in the manufacturing of cylinders for Fongas. He further contended that the respondents have closed down the whole of the establishment in violation of Standing Order 11-A of the Standing Orders Ordinance, 1968. He further contended that services of the petitioners have been terminated without observing the procedure as laid down under Standing Order-12 of the aforesaid Ordinance. He further submitted that the jobs of the petitioners were of permanent nature against which the petitioners were previously employed in permanent capacity and were getting the same rights and privileges as applicable to the permanent workers. He contended that the petitioners have been victimized due to trade union activities which constitute acts of unfair labour practice on the part of the respondents. In support of his contention, representative of the petitioner has placed reliance on the decision reported in 1992 PLC 405 and NLR 2000 18.
Controverting the allegations made by the petitioners' representative, the learned counsel for the respondents contended that in view of the permission granted by the Punjab Labour Court No,6, Rawalpindi, vide order dated 9-5-1997, the Project was closed and thereafter the petitioners were employed on daily wages basis for temporary work to meet the immediate requirement of its sister concern i,e, Foundation Gas and that even this position fias been admitted by the petitioners themselves. He further averred that presently the project is completely closed and none of the petitioners are in their employment. He further contended that Fauji Metal is a project of Fauji Foundation which is exempted from the application of I.R.O., 1969 as laid down under section 1(3)
(a) of the said Ordinance. In support of his contention he placed reliance on the judgments reported in:--
(i) PLD 1983 (Supreme Court) 457.
(ii) 2000 PLC 613.
(iii) 2002 PLC 133.
(iv) 2001 PLC 583.
9. I have given my anxious consideration to the submissions made by the representative of the petitioners and learned counsel for the respondents in juxta position with the documents available on record. On minute examination of the pleadings of the parties and their respective versions, I find that the case of the petitioners rests on bald allegations of unfair labour practice. A perusal of the cross-examination of Muhammad Akram petitioner in Case No,4A(38)/2001, Sher Muhammad petitioner in Case No,4A(39)/2001 and Shakeel Ahmed petitioner in Case No,4A(40)/2001 shows that they admitted that Fauji Foundation is a charitable institution and the said Foundation is run by a Committee of Administration consisting of Serving Generals and that they have not challenged the closure order dated 9-5-1997 passed by the Labour Court, Rawalpindi in any superior forum and that they were permanent workmen of the Fauji Metals and had received all their legal dues in compliance with the aforesaid order and that the Factory was closed after passing the order of the Labour Court at that time. They further admitted that for the second tenure the Factory has not issued them any appointment letters as workers and they never received 30 days' pay during their second tenure as they were employed as daily wagers arid that they had received pay of 27 days for some months. They also admitted that they did not file any complaint before any judicial forum regarding their engagement as daily wagers. They also admitted that the petitioners have not filed any application regarding formation and registration of any trade union before the Registrar of Trade Unions or any other Forum. They further admitted that it is correct that they had mentioned in their affidavit in evidence that the management has closed the Factory on 23-5-2000. As stated earlier that the petitioners witnesses have admitted that they have not filed any application regarding formation and registration of any trade union before the Registrar fir Trade Unions or any other Forum, thus the petitioners miserably failed in proving that on account of their trade union activities their services' were terminated by way of unfair labour practice as defined under section 15 of I.R.O. 1%9 as they have failed to prove the existence of any trade union or formation of such trade union in the respondents' establishment. Record further shows that the respondents Factory is already closed and none of the petitioners even on daily wages basis is in the employment of the respondents. In this view of the matter, the petitioners have failed to quote any specific instance of lawful trade union activities, but have repeated their allegation 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.
10. Upshot of the above discussion is that the petitioners fail in proving unfair labour practice on the part of the respondents as the Factory is already closed and none of the petitioners even on daily wages basis are in the employment of the. Respondents, I therefore have no hesitation in holding that this Commission have no jurisdiction to deal with the above titled petitions, which are hereby dismissed. However the petitioners, if so desire may file petitions before the competent forum for redress of their grievances. Parties are directed to bear their own costs. File be consigned to record.