1991 PLP 193 (PLC)

2. It is prayed "that the show-cause notices issued to the General Secretary and likely to be issued to other office-bearers of the petitioner union may kindly be declared illegal, mala fide, and respondent may also be directed not to dismiss, discharge or otherwise punish any of the office-bearers of the petitioner-union till the pending disputes inclusive of bonus are finally settled or adjudicated upon by competent Courts". The stay application prays "that the respondent management be restrained not to terminate, dismiss or otherwise punish the office-bearers listed in the main petition of the petitioner-union till the main petition is decided by this learned Commission".

3. I had both petition and application sent to the respondent to file written statements before me on .12-8-1990. I directed the respondents not to commit any unfair labour practice and more particularly not to dismiss discharge or remove any of the office-bearers of the petitioner-union till 12-8-1990 when the stay matter was to come up for confirmation or otherwise. On 12-8-1990 the Commission did not work as it had become coram non-judice due to vacancy of its Chairman, the case was therefore adjourned to 17-9-1990. However, the respondents came up on 22-8-1990 with an application for vacation of stay order dated 11-6-1990 as the workers had allegedly conducted go-slow/sit-in strike. The copy of this application was sent to petitioner through Mujahid Hussain its General Secretary and he was asked to file his reply and address arguments on 17-9-1990. On 29-8-1990 the respondents submitted another application seeking modification/clarification of stay order stating that an illegal strike is continuing and Mujahid Hussain and 13 other officers of the union had been issued charge sheets for instigating and also conducting illegal strike. The prayer in this application was as follows:-- .that the order dated 11-6-1990 may firstly be clarified whether it places a fetter on the lawful right of the employer to dismiss or otherwise punish delinquent workers and office-bearers for gross misconduct such as illegal strike continuing for over 12 days now. In the alternative the stay order may kindly be modified and it may be clarified that the stay order dated 11-6-1990 does not give protection against commission of acts of gross misconduct duly proved at a domestic enquiry. Lastly it is prayed that the stay order dated 11-6-1990 may be totally vacated and recalled ...... This application was fixed for arguments on 1-9-1990. Mujahid Hussain Shah did not turn up. He sent in a medical certificate recommending him rest "due to R.T.L.". I recorded the statements of Joint Director Labour as well as the Chairman of the Union and came to the conclusion that "to maintain the blanket protection granted to the office-bearers of the union vide my order dated 11-6-1990 would mean that protection is given for conducting even an illegal strike per se, which was not my intention". In the circumstances I withdrew the stay order dated 11-6-1990 with immediate effect. Through my order dated 1-9-1990 the stay matter having thus been disposed, the main petition came up for arguments on maintainability.

4. The first objection that the provisions of section 15 of Industrial Relations Ordinance, 1969 cannot be coupled and invoked in a civil petition under section 22-A(8)(g) and criminal provision for a complaint cannot be invoked with the civil remedy is without substance. It is true that section 15 (ibid) gives a list of acts and omissions on the part of an employer, trade union of employers or a person acting on behalf of either of them, which are punishable under section

53. But section 22-A(8)(g) authorises the Commission to deal with cases of unfair labour practices specified in sections 15 and 16 and to take, inter alia, the measures calculated to permanently prevent an employer or workman from committing an unfair labour practice.

5. The next objection that "the persons for whom relief has been claimed are not petitioners and neither they have signed the petition, the petition could only have been instituted by the petitioners/office-bearers named in the petition and the General Secretary could only represent them in view of section 49 and section 25-A of the I.R.O., 1969" was hotly contested. Very detailed arguments were submitted by learned counsel for respondents. I am however of the view that, as the text of section 49 (ibid) would show, it gives para meters of representation in case of workers or employers only when either of them is a party to an industrial dispute. In other words, the restrictions on representation of workers or employer imposed by section 49 would only be relevant when they are contesting an industrial dispute and not in the present case. A dispute between an employer and an individual workman does no longer fall within the definition of industrial dispute as defined by section 2(k) of the Ordinance (ibid).

6. It was also stated that section 25-A envisages that the workman had to take the matter himself to the Court as such the present petition filed by the CBA was incompetent. Learned counsel dilated on the subject of representation, that CBA being the representative its General Secretary could not sign the petition as representative because the representative has only the function of representation. He cited Black's Law Dictionary and Ballentine Legal Dictionary to give meanings of word representation/representative etc. He also cited a number of rulings which need not be cited here because the text of subsection (4) of section 25-A leaves no room for such a controversy and states that . or if the worker is dissatisfied with such decision the worker or shop steward may take the matter to his collective bargaining agent or the Labour Court, or, as the case may be, the collective bargaining agent may take the matter to the Labour Court ".

7. Thus, the collective bargaining agent was equally competent to take the matter of grievance of workmen to a Labour Court: It is admitted position that the Commission serves as Labour Court in the matters concerning industry wise trade unions as specified under section 22-B(3)(b) of the Ordinance (ibid).

8. The third objection that the necessary facts for assumption of jurisdiction by the Commission have not been contended by the petitioner is also of no merit because as the text of the petition would show an unfair labour practice is claimed to have been committed by the respondents on several occasions and in respect of each of the petitioners.

9. The petition is maintainable also because by removing the 14 office bearers of the C.B.A. (the petitioner), who have been served the charge-sheets by way of unfair labour practice, the very right of CBA to exist even as a registered trade union which is guaranteed to it by I.R.O., 1969 has been placed in jeopardy.

10. Thus, legal objections raised by the respondents have therefore no force.

11. I have already reproduced, above, the prayer in the main petition as well as the stay application. The prayer in the main petition states that (i) the show cause notice issued to the General Secretary and likely to be issued to other office-bearers of the petitioner union may kindly be declared illegal mala fide, (ii) the respondents may be directed not to dismiss, discharge or otherwise punish any of the office-bearers of the petitioner union, (iii) till the pending disputes inclusive of bonus are finally settled or adjudicated upon by the competent Courts.

12. As far as the question of declaring illegal or mala fide the show-cause notices issued to the General Secretary or other office-bearers is concerned, the show-cause notices being only a mechanism whereby a person is required to state his defence to a particular charge is neither a punishment nor apprehended punishment. This cannot be done. This would not only be against the statute because the Commission would thereby be suspending the requirements of Standing Order 15 of the W.P. Industrial and Commercial (Employment Standing Orders) Ordinance, 1968 but would also be negating the basic principle of our labour law which requires that no man shall be condemned unheard.

13. The text of the entire petition clearly shows that apart from the General Secretary, the Management did not even allegedly pressurise anyone. Therefore, there exists no cause of action in respect of any other office-bearer except the General Secretary. Not a single instance concerning any other office-bearer has been given in the petition to show why the CBA apprehends that the respondents will terminate the services of the office-bearers of the union. About the General Secretary, however, it is stated that he had been issued three explanation letters. Under these circumstances even if the very text of the petition and stay application is taken to be correct and no evidence is recorded still no case of apprehended unfair labour practice in respect of any of the office-bearers of the union, except its General Secretary, will be made out.

14. The text of the entire petition shows that apart from vague and general allegations of the management pressurising the officers of the union there are no other allegations. Para. 5 states that due to filing legal cases for interpretation of settlement and raising of industrial dispute regarding bonus the management started pressurising the office-bearers of the union to withdraw the same failing which all the office-bearers will be dismissed from service. It goes on to narrate about the General Secretary's letter protesting against the threatened behaviour of Mr. Masood Shafi Kazi, General Manager `who had pressurised the Genera'. Secretary' and the letter written by General Secretary to the management at Lahore alleging "that the General Manager's behaviour is very threatening and aggressive". Para. 6 gives no allegations of unfair labour practice. It states that three explanation letters were issued to the General Secretary (which I have already stated do not constitute unfair labour practice) and also that the Joint Secretary of the Union had already been dismissed on 31-5-1990 on the pretext of long absence. Para. 7 states that the motive was to get rid of said (i.e. 14) trade union officers because they are insisting upon implementation of settlement and pursuing demand of bonus. It is stated about the management that "their object is to pressurise the office-bearers for withdrawal of their demand of bonus". Absolutely no incident, no dramatic event or crucial incident or happening is narrated for coming to this conclusion and it is stated that "the action already taken by the respondent covered under unfair labour practice and if not stopped at this stage the management is likely to commit further unfair labour practice by terminating the services of said office-bearers." Para. 8 also does not narrate any incident. It contains the opinion that if the respondent are not restrained they will certainly terminate the services of office-bearers of the union so that it becomes a non-entity for raising the demand of bonus.

15. While in respect of the -General Secretary of the Union, it is at least stated that he had been issued three `explanation letters about the other thirteen no such event or crucial incident has been alleged. An allegation in para. 5 of the petition doubtlessly alleges that "due to filing of legal cases for interpretation of settlement and raising of industrial dispute regarding bonus the management started pressurising the office-bearers of the union to withdraw the same failing which all the office-bearers will be dismissed from service." But this is a vague and general allegation devoid of all details.

16. An allegation of unfair labour practice is a serious matter. It is an allegation of malice of a particular kind. If proved it can lead to penal consequences. It is therefore an allegation which must not be idly levelled or casually pleaded. The Supreme Court of India in the case of Bharat Iron Works v Daghubhai AIR 1976 SC 98 observed as follows: "A word of caution is necessary, victimisation is a serious charge by an employee against an employer, and therefore, must be properly and adequately pleaded giving all particulars upon which the charge is based to enable the employer to fully meet them. The charge must not be vague or indefinite being, as it is, an amalgam of facts as well as inferences and attitudes. The facts that there is a union espousing the cause of the employees in legitimate trade union activity and an employee is a member or active office-bearer there is, per se no crucial instance.

17. The Courts in Pakistan have also been unanimous that mere allegation of victimisation or unfair labour practice is not sufficient. Whether it was Mr. Justice (Retd.) Inamullah Khan of Sindh Labour Appellate Tribunal in cases cited as 1974 P L C Note 5, 1976 P L C 453(2) or Mr. Justice (Retds.) ZA. Channa of Sindh Labour Appellate Tribnunal in case reported as PLJ 1979 Tr. Cases Labour 287 at 291 or Mr. Justice (Retd.) M.S.H. Quraishi, Chairman, N.I.R.C. in 1988 P L C 923 each of them has held that bare allegations in the absence of specific acts and circumstances are not sufficient to establish unfair labour practice. There is a long line of authorities for this view such as 1969 P L C 238, 1969 P L C 439, 1969 P L C 691, 1974 P L C 69, 1975 P L C 24 and 1975 P L C 56 etc. Thus, no case of unfair labour practice apprehended or otherwise is made out.

18. Further, D.F. Mullah in his commentary on C.P.C. states that "the plaintiff must give such particulars as will enable the defendant and the Court to ascertain from the plaint whether in fact or in law the cause of action did arise as alleged or not. The plaintiff's mere statement that it did arise or that he has a good cause of action is useless for this purpose". Ramprasad v. Hazarimull (1931) 58 Cal. 418; I.C. 538 (131) A.C. 458.

19. The present petition does not state when the `management' started pressurising the office-bearers of the union which was essential under Order VII, Rule 1(e) which requires the facts constituting cause of action to, be stated. The petition on the other hand is woefully shorn of any detail of fact, beyond the bald assertion that `management' started pressurising the trade union officers. It does not state even the name or names of the member or members of the management who allegedly pressurised the officers of the union. It does not state the detail of any crucial incident whereby it is concluded that the management "pressurised" the officers of the union, when or where did that incident or incidents occur. Thus, the necessary details of who, where, when, how are missing and the Court is unable to see whether in fact the cause of action did arise as alleged. Merely, stating that the trade union officers were pressurised is an opinion or a conclusion. The plaint had to state these facts on which this opinion or conclusion is based for the Court to see whether the cause of action did arise.

20. For these above stated reasons this petition is rejected under Order VII, Rule 11, C.P.C. M.Y.H./163/N.I.R.C. Petition rejected.