2008 PLP 125 (PLC)

GHULAM NAUMAN SHAIKH (MEMBER)

This is petition under section 49(4)(e) of the IRO 2002 along with an application under Regulation 32(2)(c) of NIRC (P&F) Regulations, 1973 supported by affidavits filed by the petitioners against the respondents.

1. Fact of the case as stated in the petition are that the petitioners are employed in the respondents establishment. They are working in the production and maintenance departments, but the petitioners have been deprived from their legal rights. The petitioners are members of the Johnson & Phillips (Pakistan) Workers Union. It is alleged that the respondents are discriminating the workers on the pretext of regular, non-regular, causal, temporary and contractors workers, while all the workers including the petitioners are working on permanent posts. It is alleged that the petitioners when demanded their legal rights from the respondents No.2 and 3, they warned that if the petitioners would claim such rights they would be removed from employment. It is alleged that on 21-6-2005 the workers resorted to legal strike, but at about 11-00 a.m. area police entered in the factory. Thereafter one Assistant Director Labour (Conciliation) West Division also came in the factory and the respondents and their connected persons forced the petitioners to do the work during the legal strike and area police and the Assistant Director Labour (Conciliation) West Division forced the petitioners of start work so as to frustrate the legal strike. Further it is alleged that the petitioners are being harassed and forced to do work and leave the striking workers and. the C.B.A. union to defeat the ends of legal strike of workers. Therefore it is apprehended that the respondents shall victimize and remove the petitioner from service on false notions without due process of law. Hence this petition with prayer to declare the acts and conduct of the respondents as acts of unfair labour practice and restrain the respondents and their connected persons from terminating, suspending and removing the petitioners from service or pressurizing, harassing, threatening, coercing or intimidating or adopting such steps adverse to the legal rights of the petitioners.

2. On presentation of the petition on 11-7-2005 interim prohibitory order was passed, thereby the respondents were restrained from dismissing, terminating or taking any adverse action against the petitioners during the strike period till the next date, which continued from date to date.

3. The respondents filed parawise comments with preliminary legal objection on main petition and counter-affidavit on stay application. The preliminary legal objections raised are that there is no employment relationship between the petitioners and the respondents establishment, as such the petitioners have no locus standi to file the petition against the respondents. The petitioners are engaged and employed by the contractor Muhammad Shabbir, who has removed them from service on 14-7-2005, as informed by the contractor to the respondents through his letter dated 15-7-2005. The petitioners have not made contractor Muhammad Shabbir as party. Accordingly the petition is not maintainable. On merits the respondents have denied that the petitioners are employed by the respondents' establishment. It is submitted that the petitioners were engaged and employed by contractor Muhammad Shabbir and they have no employment relationship with the respondent No.1. It is denied that the respondents have deprived the petitioners of their legal rights and are discriminating the petitioners in the employment and that the petitioners are permanent workmen in the respondents establishment. It is submitted that membership of the petitioners with the union is illegal and an after-thought plea and the documents Annexures "P.1" to "P.5" filed by the petitioners have been" manipulated and have been filed with ulterior motives. Besides, neither specific instance of alleged unfair labour practice has been incorporated nor the same has been supported through any valid documentary proof which clearly indicates that the allegations have been raised with mala fide intentions and ulterior motives. It is submitted that the petitioner have no locus standi in the matter of strike, which was resorted by the workers union (CBA) in the factory with effect from 21-6-2005, which tool is not legal and that the petitioners have no connection whatsoever with the said union and strike as they are engaged and employed by the contractor Muhammad Shabbir and for that reason they were performing their duties with the said contractor Muhammad Shabbir till they were ,removed from service by contractor Muhammad Shabbir as communicated by the contractor to the respondents vide letter dated 15-7-2005. It is admitted that the respondents had called police at the factory premises on 21-6-2005, but it is alleged that police was called in view of the fact that the workers had resorted acts of unfair labour practice on 21-6-2005 and displayed banners in the factory and the office bearers of CBA union and other workers connected with them had pressurized, threatened and intimidated other workers, who had no connection whatsoever with the CBA union particularly by the supervisory staff of the establishment and the workers engaged and employed by the contractor not to perform any work in the factory and join them to resort strike in the factory, for which the respondents have already filed a case bearing No.4A(81)/2005-K, where by this Honourable Commission has been pleased to pass prohibitory order dated 16-6-2005 restraining the office bearers and other workers connected with them not to commit acts of unfair labour practice in the establishment.

4. One of the petitioners, Khalique Ahmed petitioner No.1 filed affidavit-in-rejoinder.

5. I have heard arguments of Mr. M.A.K. Azmati learned advocate for the petitioners and Mr. Mehboob Razvi learned Advocate for the respondents.

6. Mr. M.A.K. Azmati learned advocate for the petitioner has contended that the petitioners are employed in the respondents establishment on permanent posts. They are members of the Johnson & Phillips Workers Union (C.B.A.). It is submitted that C.B.A. union served charter of demands on the respondents management. Bilateral negotiations failed. Conciliation proceedings also failed. C.B.A. union then served strike notice and workers resorted to legal strike in the respondents establishment from 21-6-2005. On commencement of legal strike the respondents started to harass and pressurize the workers to perform their duties even during the strike legally commenced. Area police was called and they also threatened the workers. Complaints were made by the General Secretary of C.B. Annexures which have been filed as Annexures "P.6" and "P.7". It is submitted that the petitioners are directly working with the respondents on permanent posts, but the respondents in parawise comments have denied the petitioners employment relationship with the respondents and have raised preliminary legal objections that the petitioners have no locus standi to file the petition. It is submitted that these points can be considered only after the evidence of the parties is recorded. It is submitted that the petitioners have no knowledge of letter of removal from service dated 15-7-2005 filed as Annexure "R.3" with parawise comments. It is contended that this letter of removal from service Annexure "R.3" has been passed to frustrate interim prohibitory order dated. 11-7-2005. In support of his contention Mr. M.A.K. Azmati learned advocate for the petitioners has placed his reliance on 2006 PLC 450, 1988 TD (Labour) 31 (sic) (Chairman NIRC), 1993 PLC 937, 2005 SCMR 100, AIR1978 Supreme Court 1410 and 2005 PLC 466 (High Court of Sindh, Karachi).

77. On the contrary it is contended by Mr. Mehboob Razvi learned advocate for the respondents that the petitioner do not have employment relationship with the respondents, as such the petitioners have no locus standi to file the petition. The respondents invariably had been issuing appointment letter to all their workers. It is contended that due to preliminary legal objections raised by the respondents that the petitioners have no employment relationship with the respondents, it is obligatory on the petitioners to produce their appointment letters or even some other service documents to show their employment relationship with the respondents, but the petitioners have failed to produce the same. It is submitted that the burden lies on the petitioners to prove their employment relationship with the respondents. It is contended that in the respondents establishment union subscription of members of C.B.A. Union is being deducted from their salaries through check off and the same is paid by the respondents to C.B.A. through cheque. Neither the respondent have ever paid salary to the petitioners nor deducted their union subscription from their salaries through check off. It is submitted that the petitioners had never informed the respondents that they are members of C.B.A. union. It is submitted that the respondents had given some work on contract to the contractors. Such contract agreement and extension of contract agreement have been filed with parawise comments as Annexures "R.1" and "R.2" respectively. It is submitted that the petitioners were employed by the contractor Muhammad Shabbir, who have removed them from service vide letter dated 15-7-2005 communicated to the respondents filed with parawise comments as Annexure "R.3". It is submitted that the petitioners have no prima facie case of unfair labour practice on the part of the respondents and the petition is not maintainable. In support of his contentions Mr. Mehboob Razvi learned advocate for the respondents has placed his reliance on unreported judgment dated 14-10-2003 of the High Court of Sindh at Karachi in C.P. No.2441 of 2001 in -case of Habib-ur-Rehman versus Sindh Labour Appellate Tribunal and others, Judgment of Karachi High Court in case of PECHA Pakistan Limited, Karachi v Abdul Ghaffar Virani and 2 others, reported in 1993 PLC 2, Judgment of Karachi High Court in case of Sea Gul Exports (Pvt.) Ltd. v. Sindh Labour Appellate Tribunal and others reported in 2002 PLC 212, decision of Labour Appellate Tribunal Sindh in case of Alamgir and others v. Messrs Dada Bhoy Silk Mills Ltd. and others and decision of Sindh Labour Appellate Tribunal in case of Muhammad Rasheed v. Presiding Officer and 2 others, reported in 2003 PLC 76.

8. I have considered arguments advanced by the learned advocates for the parties and have gone through the petition, application under Regulation 32(2)(c), NIRC (P&F) Regulations, 1973 filed by the petitioners, parawise comments with preliminary legal objections and counter-affidavit filed by the respondents and affidavit-in-rejoinder filed by the petitioners and documents produced by the parties.

9. In the present petition the petitioners claim to be employed in the respondents establishment as permanent workmen since last 2 to 5 years. No specific date of appointment is mentioned in the petition. Neither appointment letter has been produced nor any document relating to employment with the respondents has been produced by the petitioners to substantiate this claim. The respondents have categorically denied that the petitioners were employed by the respondents. It is submitted by the respondents that the respondents had given some work on contract to contractor Muhammad Shabbir, who had engaged and employed the petitioners and the said contractor by a letter dated 15-7-2005 had removed the petitioners from service. Contract agreement has been produced as annexure "R.1" and Extension of contract agreement as Annexure "R.1" and letter of removal from service dated 15-7.-2005 as Annexure "R.3". In the circumstances onus to prove their employment relationship with the respondents lies on the petitioners, who so claim in the petition. In support of their claim the petitioners have yet to produce some oral or documentary evidence. So far the petitioners have failed to discharge this burden. In case of Alamgir and 2 others v. Messrs Dada Bhoy Silk Mills Ltd. and others reported in 1997 PLC 13 Labour Appellate Tribunal Sindh observed that the relationship of employee and employer, having been denied by the employer, burden lay on employees to prove that they were their employees.

10. Moresoever there are general and bald allegations. The petitioners have alleged that during commencement of legal strike on 21-6-2005 area police and Assistant Director Labour (Conciliation) West Division had forced them to start the work, which have been denied by the respondents in their parawise comments. In the circumstances the petitioners have failed to produce substantial evidence to establish this allegation. For the aforesaid reasons I am of view that the petitioners do not have prima facie case of unfair labour practice, and other two essential elements, balance of convenience/inconvenience and irreparable injury are also lacking in favour of the petitioners for grant of interim relief. Accordingly application under Regulation 32(2)(c), NIRC (P&F) Regulations, 1973 is dismissed and interim prohibitory order, dated 11-7-2005 is recalled. H.B. T./17/NIRC Application dismissed.