1988 PLP 923 (PLC)

Malik Mehrban for Respondents (in Appeal No. 12(37) of 1987). Muhammad Afzal Siddiqi for Respondents (in Appeal No. 12(43) d 1987) Date of hearing: 1st October, 1987. ORDER. M. S. H. OURAISHI (CHAIRMAN).‑‑These appeals were heard mid,: subsection (4) of section 22‑B of I.R.O. 1969 in the absence of Mr. Ashraf Ali Joint Secretary, Labour Division, who was pre‑occupied. This order will dispose of two appeals, one filed by the Management bearing No. 12(37) of 1987, the other filed by the concerned workers bearing No. 12(43) of 1987 and cross‑objection in the latter appeal filed by the management. The appeals and the cross‑objection arise out of an application filed by (i) Ghulam Asghar, (ii) Taj Muhammad, (iii) Muhammad Yousuf, (iv) Amir Afzal, and (v) Muhammad Safdar, watchmen, all workers of the Industry of Pakistan, Haripur, under section 22‑A(8)(g) read with section 15 the I.R.O: The case of the petitioners was that they had entered the employment of the TIP on 10‑12‑1982, 23‑7‑1982 in 1976; on 21‑7‑1984 and 21‑7‑11)x‑1 respectively, that as there was a ban on employment, they had been temporary basis although the vacancies against which they had been were of permanent nature, that after the completion of the probation period three months they should have been made permanent but this was not done and instead five other persons were made permanent; that they approached the management through Muhammad Nawaz Jadoon, Ex‑General Secretary of the Employees and Workers Union as they belonged to his group and tic respondents assured him that the petitioners would be made permanent but th.11 as nothing happened, they met Mr. Pervez, Security Officer and repmf16cd him his promise made to Muhammad Nawaz Jadoon to make them permanent bi: M. Pervez replied that the management did not like the trade union activities of Nawaz Jadoon and as they had approached the management through him, the had for this reason not been made permanent. The petitioners also alleged that Mr. Pervez further threatened them with termination of services for their participating in the trade union activities of Mr. Muhammad Nawaz Jadoon the petitioners in order to show that there was no shortage of vacancies, asserted that eleven more persons were enrolled as watchmen on a temporary basis. They, therefore, attributed their non‑confirmation to revengeful spirit on the part of the management and sought a direction for not terminating their services pending decision of their petition. In their comments, the respondents/management submitted that the petitioners had been employed as temporary watchmen to meet the emergency and temporary requirements of the Company, that as their appointment was against temporary vacancies and purely on ad hoc basis, they were not entitled to be made permanent after three months' service, that five other employees had been made permanent but it had been done on the recommendation of a Committee appointed to evaluate the performance of the watchmen and that the petitioners had not been ignored for any other reason but upon consideration of the fact that their performance was found not upto the mark. The respondents management denied the allegation of unfair labour practice by stating that no approach had been made by Nawaz Jadoon regarding the petitioners nor had he taken up the matter with Mr. Pervez. They also denied that any of the petitioners had met Mr. Pervez or that the latter had in any way threatened the petitioners with action by termination of their services or any other such action against them for their association with Nawaz Jadoon or for having trade union activities or having approached the management through Nawaz Jadoon. They also challenged the maintainability of the petition on the ground that as the case of the petitioners was in the nature of grievance they could have approached the appropriate Labour Court. Two of the petitioners namely: Taj Muhammad and Gleam Rasool appeared in support of the petition. They maintained that they had for their confirmation approached the management through Nawaz Jadoon as they belonged to his group, that they had gone with Nawaz Jadoon to the General Manager where they were also called inside the room of the General Manager and were informed by Major Pervez that they (petitioners) should not agitate and that they would be confirmed in due course. However, when they were not confirmed, they again went to Nawaz Jadoon and at his asking met Major Pervez who informed them that as they belonged to the group of Nawaz Jadoon which was not liked by the management they would not ~e confirmed and instead would be turned out. They further stated that subsequently they were asked to sign some forms which they did, that thereafter they were refused entry without there being any order in writing and that they had not been paid wages from 17‑2‑1985. Nawaz Jadoon who also appeared as their witness corroborated them. Major Pervez who appeared as the sole witness on the respondents' side, stated that a re‑purvey was conducted by a Committee called `KPID' on 23‑7‑1984 which recommended increase in the strength of chowkidars whereupon the Personnel Manager advised the witness to examine the existing strength and the performance of chowkidars. This led to the setting up of a Committee of the TIP Officers which in its meeting, dated 28‑10‑1984, after considering the cases of all the casual /temporary chowkidars, selected six of them for permanent retention, and they were, subsequently appointed on a permanent basis. He expressed lack of awareness as to the petitioners having ever approached him or the Personnel Manager in connection with their permanent retention: He also denied having ever discussed the matter with Nawaz Jadoon. He denied the suggestion that the petitioners had not been taken on duty because they belonged to Nawaz Jadoon Group. The learned Single Bench held that the Committee while considering the persons for permanent retention had not considered the cases of the petitioners although they were senior to the six persons confirmed and that the services of the petitioners were terminated without any proceeding against them or any material to show that they lacked efficiency or fitness for permanent retention. This, according to the learned Bench, showed that the petitioners had been victimized on account of their affiliation with Nawaz Jadoon group. The learned Bench, therefore, by its impugned order, dated 9‑6‑1987, accepted the petition to the extent that the management was directed to reinstate them with immediate effect. The management's appeal seeks the setting aside of the impugned order while the appeal of the petitioners seeks the back benefits from the time they were turned out of job until the date of passing of the impugned order. The cross objection filed by the management in this appeal seeks the dismissal of the appeal. The Management during the hearing of the appeals questioned the maintainability of the petition on the grounds that the petition had not been presented by the petitioners thereof but through their Representative and that the petitioners being chowkidars were not workers and as such could not invoke the I.R.O. The petition is purported to have been signed by all the five petitioners but strangely, one of the two petitioners who appeared to testify, namely, Ghulari Asghar, stated "I have not signed the petition". This shows that the petition had actually not been signed by him and that, therefore, the signature affixed thereon A against his name was of some‑one else. However, since he had not dissociated from or disowned the petition, the irregularity, if any, could be rectified by obtaining his signature, which there being no period of limitation, could be done even at a later stage. The second point must also fail for the reason that it had not been taken in the comments filed to the petition. No evidence had also been led B to show the actual nature of the duty of the petitioners so as to infer that they were not entitled to invoke the I.R.O. But the main ground, taken by the Management for seeking the reversal of the impugned order, that no case of unfair labour practice having been established, the Commission's jurisdiction was not attracted, requires consideration. The Commission's jurisdiction will extend not because of any C illegality or irregularity in the action taken by the Management but upon evidence that such action impinged upon the provision of the section 15 of the I.R.O. In a recent judgment in: "Iftikhar Ahmad v. President, National Bank of Pakistan and others" Civil Appeal No. 221 of 1985 and other appeals), the Supreme Court has 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 practices in them; it does not encompass cases where no allegation of unfair labour practices is made. It may be mentioned that sections 15 and 16 of the Ordinance set out instances of unfair labour practices on the part of the employers as well as workmen. It is therefore, not right to construe the clause in question as conferring general jurisdiction upon the Benches to entertain all kinds of grievance petitions even though they may not be relatable to unfair labour practices: It is no doubt true that assertions had been made in the petition and later in the evidence that the non‑confirmation of the petitioners and their subsequent termination from service were because they had belonged to Nawaz Jadoon Group which was not liked by the management. In that connection certain statements had been attributed to Major Pervez of the Management as mentioned earlier, but strangely the statements had not been specifically put to Pervez who appeared as the sole witness on the side of the Management. This was necessary, particularly, because in his examination‑in‑chief he had stated: "I am not aware as to whether these 5 petitioners ever approached me or the Personnel Manager in connection with their permanent retention in the factory. Nor was I ever called by the General Manager in this connection. This matter was also never discussed by me with Nawaz Jadoon:" A suggestion in this regard when put to him in the cross‑examination was answered by him in the words. "It is incorrect to suggest that the petitioners were not taken on duty because they belonged to Nawaz Jadoon Group". The evidence on this point which was produced by the petitioners was only oral which stands denied by the oral testimony of Pervez who also gave a different explanation for the action taken by the Management against the petitioners. The petitioners did not cite any specific instance involving them selves to show that the Management had an axe to grind against them because of their trade union activity. All that they said was that the action was on account of their being in Nawaz Jadoon Group which was not liked by the Management. However, they did not cite any specific instance to support any such dislike. Nawaz Jadoon himself in his evidence did not cite any fact or instance to support the assertion that the Management was unfavourably disposed towards his group. In fact Nawaz Jadoon did not even attribute to the Management any such attitude against his group. It has been repeated time and again, such cases, that bare allegations m the absence of specific act and circumstance are not sufficient to establish unfair labour practice. See "Muzaffar Hussain and others v. Batala Engineering Company (Pak). Ltd. Lahore 1969 P L C 238, Muhammad Farooq v. Messrs Iqbal Silk Mills Ltd., Karachi 1969 P L C 439, Messrs lqbal Silk Mills Ltd., Karachi v. Mahmood Mian 1969 P L C 691, Mahmood Hussain v. Messrs United Distributors Ltd. 1974 P L C 69, Jubilee Spinning and Weaving Mills Ltd. Karachi v. Bladar Khan and 8 others 1975 P L C 24 and National Bank of Pakistan Peoples' Federation v. National Industrial Relations Commission, Islamabad 1975 P L C 56". The oral assertion made on behalf of the petitioners, in the face of denial by the Management and in the absence of proof bf specific supporting circumstance that the Management was annoyed with the Jadoon Group and that the action against the petitioners was in consequence of that annoyance, cannot be considered to be sufficient evidence of unfair labour practice. The onus of proof was on the petitioners/workers but they have not discharged the same that being so, their petition was liable to be dismissed and the relief sought, to be denied. Even otherwise, the petitioners had admittedly been employed on a temporary basis. In fact the document R/1 which is an admitted document shows that the employment was of a casual nature. Such being the nature of their employment, the termination of their services even if illegal would per se not I constitute unfair act. Consequently, we accept the appeal of the Management and their Cross objections and set aside the impugned order. The appeal filed by the petitioners workers stands dismissed. S.O./124/NIRC Order according