1998 PLP 528 (PLC)

2. On this application, this Bench of Commission had passed interim prohibitory order dated 2-9-1997 with notice to the respondents.

3. Objections with counter-affidavit on stay application have been filed by the respondents and rejoinder has been filed by the applicant.

4. Application under section 151, C.P.C. supported by affidavit has also been filed by the respondents to dismiss the application and to recall the interim prohibitory order dated 2-9-1997.

5. Heard Mr. Shafique Qureshi, learned Advocate for the applicant and Mr. Mehboob Rizvi, learned Advocate for respondents.

6. Mr. Shafique Qureshi, learned Advocate for applicant has contended that applicant union is C.B.A. in the respondents establishment. There was settlement between the C.B.A. and the respondents establishment for a period of 3 years with effect from 1-7-1994 to 30-6-1997, and according to its clause (10), it has to continue for a period of two months from the date of notice of termination given by either party. He has contended that notice of termination alongwigth charter of demands was served by the respondents on the applicant union, and the applicant union also served notice of termination on the respondents. The respondents also gave notice of lock-out dated 14-7-1997 to the applicant union, to which applicant union replied that it was illegal and applicant union also filed a case before this Bench of Commission under section 22-A(8)(g) read with section 15 of the I.R.O., 1969 and Regulation 32(2)(c) of N.I.R.C. (P&F) Regulations, 1973 bearing No.4A(163) of 97-K, wherein the operation of lock-out notice was suspended arid the said order was passed on 1-8-1997 by this Bench of Commission, suspending the operation of lock-out notice. He has contended that fresh charter of demands was to be submitted on 1-9-1997 after expiry of two months notice of termination of the settlement by either party. He has contended that, the respondents have threatened to terminate the office bearers and members of applicant union and to close down the whole establishment to compel the office-bearers to sign the settlement of their choice, as such the applicant has prima facie case, therefore, the interim prohibitory order passed on 2-9-1997 be confirmed. In support of his contention Mr. Shafique Qureshi, learned Advocate for applicant has placed his reliance on Full Bench decision of N.I.R.C. in case of General Secretary, Pak-Saudi Fertilizers Ltd. Bagging and Loading Contractor Mazdoor Union, Mirpur Mathelo v. Pak-Saudi Fertilizers Ltd., Mirpur Mathelo, District Sukkur through Managing Director and 2 others reported in 1993 PLC 937 and also the order of Third Sindh Labour Court, Karachi in Application No. 104 of 1988 of M/s. Golden Industries (Pvt.) Limited v. Golden Industries Employees' Union through its General Secretary.

7. Mr. Mehboob Rizvi, learned Advocate for respondents has contended that the applicant union has already filed a case under section 22-A(8)(g) read with section 15 of the I.R.O., 1969 and Regulation 32(2)(c) of N.I.R.C. (P&F) Regulations, 1973 bearing Nos.4 A(163) of 97-K before this Bench of Commission and for the same cause of action, he has again filed the present case also. In the previous case they were granted ad interim order on 1-8-1997 by this Bench of Commission. He has contended that the second case has been filed by the applicant union only to pressurise the management, so that they shall withdraw their charter of demands, which they have served on the applicant union. He has contended that the settlement executed by the C.B.A. and the respondent management for a period of 3 years with effect from 1-7-1994 to 30-8-1997 has been terminated by issuing the notice of termination by both the parties dated 1-7-1997 on each other. The respondents had served charter of demands on 1-7-1997 and had also served notice of lock-out on 14-7-1997, which was then withdrawn by the respondents on 4-8-1997. The respondents in their counter-affidavit have denied that they have committed any unfair labour practice or intend to commit any act of unfair labour practice, more or less on similar cause of action the petitioner is making the similar prayer, and has filed this present petition. He has contended that it is right of the respondents to serve its charter of demand on C.B.A. and also to serve notice of lock out, and it cannot be said that this act of the respondents is illegal or an act of unfair labour practice. He has contended that there is no specific instance of unfair labour practice at any time committed by the respondents against the office-bearers or members of the C.B.A. and there are vague and general allegation levelled in the petition against the respondents by the applicant union which do not fall within the ambit of unfair labour practice. He has also contended that affidavit of Naseem Ahmed, General Secretary in support of stay application is also not sworn on oath, as such on this score also the application is not maintainable. He has also contended that the applicant has no prima facie case, as such the application for stay be dismissed and interim prohibitory order granted on 2-9-1997 be vacated. In support of his contention, Mr. Mehboob Rizvi, learned Advocate for the respondent has placed his reliance on decision of Labour Appellate Tribunal, Sindh in case of Employees' Union v. Messrs Karachi Pipe Mills Ltd. reported in 1980 PLC 773 and decision of Full Bench of N.I.R.C. in the case of Boots Pharmaceutical Limited v. Member, N.I.R.C., Bench, Karachi and another reported in 1994 PLC 476.

8. I have considered the arguments advanced by Mr. Shafique Qureshi, learned Advocate for applicant and Mr. Mehboob Rizvi, learned Advocate for respondents.

9. The applicant union has already filed application under section 22-A(8)(g) read with section 15 of the I.R.O., 1969 and Regulation 32(2)(c) of N.I.R.C. (P&F) Regulations, 1973 praying to suspend the operation of lock-out notice dated 14-7-1997 and also to restrain the respondents from terminating, dismissing, removing, retrenching or suspending the office-bearers and members of applicant union. In the present application also the applicant union has made similar prayer that the respondents be restrained from terminating, retrenching, dismissing the office-bearers and members of the applicant union with addition of one prayer that the respondents also be restrained from, closing down the establishment and making alteration and reduction in the terms and conditions of employment.

10. Admittedly the settlement already executed between the parties stood expired after two months of termination noticed dated 1-7-1997 given by both the parties on each other, and both of them are now at liberty to serve charter of demands on each other. The employer has right under the Industrial Relations Ordinance to serve charter of demands on C.B.A. under section 26(1) and also the C.B.A. has the same right. In case of failure of bilateral negotiations, the employer can serve lock-out notice under section 26(3) of the I.R.O., 1969 and then to take the matter to the area conciliator. There is no specific instance in the main petition or in the affidavit that the respondents have ever victimised any of the office-bearer or member of applicant union due to their trade union activities. The applicant union in paras. Nos. 7 to 13 of the main petition has alleged that the respondents have removed the ceiling fans, padestral fans from the factory although the same are pledged with the Bank without having informed to the officers of the Bank. The respondents in their reply have stated that these allegations are false and it amounts to the interference in the affairs of employer, who has right to sell the fans to any of its buyers and it has been sold with the knowledge of the M.C.B., and their invoices of the fans and invoice of M.C.B. have also been filed with the comments of the respondents as Annexure R/1 to R/11. Obviously, these allegations that the respondents have removed ceiling fans and padestral fans do not fall within the purview of unfair labour practice. So far the respondents have not removed or terminated any of its employee and process of manufacturing the fans is going on in the factory. So far there is nothing on record to show that the respondents intend to close down the establishment. Even otherwise, the respondents can close down the establishment with permission of the Labour Court as envisaged under Standing Order 11-A of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. For the aforesaid reasons, I am of the view that the applicant has not been able to make out a prima facie case for grant of interim prohibitory order, as such the application under Regulation 32(2)(c) of N.I.R.C. (P & F) Regulations, 1973 is dismissed and the interim prohibitory order passed on 2-9-1997 stands recalled. To come up on 2-3-1998 for filing affidavit-in- evidence by the applicant. In view of above order, the application under section 151, C.P.C. filed by the respondents on 3-11-1997 also stands disposed of. Announced in open Court. Given under my hand and seal of the Commission, this 19th day of February, 1998. H.B.T./296/N.I.R.C. Application dismissed.