2003 PLP 301 (PLC)

5. Agitating against the aforesaid order dated 6-2-1999, the respondents-Corporation have filed an Appeal No.12(23)/99 before Full Bench of this Commission which was accepted vide order dated 15-8-2000 with the following directions:-- "For the aforesaid reasons, we are of the considered opinion that the impugned order dated 6-2-1999 will not sustain. Accordingly for the reasons to be recorded later, short order was announced after hearing the arguments of the parties, whereby the appeal was allowed and the impugned order dated 6-2-1999 of the learned Single Member was set aside and the case was remanded to the Single Bench for passing fresh order after allowing opportunity to the appellant to file written statement and opportunity to both the parties to lead their evidence in support of their respective contentions, with direction that the learned Member shall finally decide the case within one month from today."

6. In terms of the aforesaid order dated 15-8-2000 of the Honourable Full Bench, the respondents have filed their written statement and reply to the stay application on 15-2-2002, Copies whereof supplied to the petitioners. In their written statement, the respondents have resisted and vehemently opposed the petition by raising inter alia certain preliminary legal objections as to the jurisdiction and maintainability of the petition including an objection that all the employees of the respondents have become Civil Servants under section 2-A of the Service Tribunals Act, 1973, Which was inserted in the year 1997. On merits the respondents also controverted the allegations made by the petitioners. It was contended that services of the petitioners were terminated due to closure of the workshop as per decision of the Board of Directors in accordance with law and not due to trade union activities of the petitioners which is covered under section 151 of I.R.O, 1969.

7. Both the parties adduced their evidence. All the petitioners have tiled their affidavits, in evidence. The, petitioners Nos. 1 and 4 to 7 were cross-examined by the learned Counsel or the respondents. While on behalf of the respondents, one witness Wasi-uz-Zaman (Deputy Managing Director NATCO) has filed his affidavit in evidence, who was cross-examined by the representative of the petitioners. In their affidavits in evidence, the petitioners have reproduced the contents of their petition and asserted that:-- I. the Full Bench of the Commission vide its order dated 21-6-1997 had allowed Payment of Salary for July, 1996 and from 1-12-1996 to June, 1997 to the deponents vide Exh. P.3 as such plea of termination of the petitioners due to closure of workshop is baseless and concocted. II. the respondents have refused to continue to employ the deponents and others for the only reason that they are the members and officers of Pakistan Peoples Workers Union NATCO, Islamabad; III the respondents have engaged workers on contract basis through Muhammad Hanif who sits in Pir Wadhai and was a petitioner in Case No.4A(380)/98. He has engaged six or seven persons and he himself comes to workshop oftenly driving the Buses of NATCO. Similarly the work of Electrician, Denter, Kamani-Makers and Silencer, Tanky Mechanic is being carried out from outside by paying heavy costs and lacs of rupees are being spent in this way. All other workshops at Gilgit, Skardu, Chillas, Sust, Jaglot, Hunza are working and sufficient staff are employed in these workshops. The staff employed in the NATCO Workshop Islamabad was at the most given wages from Rs.45,000 to Rs.60,000 a month whereas Lacs of Rupees are being spent monthly. Station Incharge S. Shamsudduin, Munir Ahmad Workshop Incharge. Storekeeper Ghaus Muhammad, Ghulam Abbas and 5 Chowkidars are still working.

8. In his cross examination the petitioner No.1 stated that:

"the name of my union is Pakistan Peoples Workers Union. The union presently do not exist, The union ceased to exist on 18-7-1996, when we were turned out from the NATCO Workshop Islamabad. NATCO is a Government owned establishment ..It is not in my knowledge that three officers of the Commission on different occasions have inspected the Workshop ...It is not in. my knowledge that all the three officers submitted their rent regarding closure of the Workshop ....It is correct to suggest that NATCO is getting repair of its vehicles from Private Workshops and also from inside the Workshops ....It is correct that we are removed from service due to our trade union activities. It is incorrect to suggest that I have not given any details of the trade union activities. It is incorrect to suggest that Ahadullah Petitioner No.2 has received his full and final dues from the Corporation.

8. It may be submitted that during their cross-examination. Petitioners Nos.4 to 7 have also made similar statements.

9. On behalf of the respondents, the witness Wasi-uz-Zaman (Deputy Managing Director NATCO) has submitted in his affidavit in evidence that services of the petitioners were terminated in accordance with law due to closure of Workshop at Islamabad as per decision of the hoard of Directors and the respondents have not committed any unfair labour practice. In his cross-examination he has stated that:-- "the workshop was closed down according to the decision of the Board of Directors because it was running into loss. Copy of the decision of the Board of Directors is on the file as Anexure R/A ....We are getting the repair work from the open market. It is incorrect to suggest that no repair was carried out in the Workshop at NATCO. It is incorrect to suggest that expenses of repair work. . carried out from the open market are shown into the name of workshop. The major cause of loss was that the staff of workshop was not working properly ....It is correct that except the mechanics and helpers, the other staff has not been removed. We have not removed the other staff except the helpers and machines from the workshop". Q. Whether presently Deputy Manager, Clerks and Chowkidars are working?. Ans: The job of the Deputy Manager, Supervisors and Chowkidars have been changed while the Clerks have been removed.

10. Arguments were heard. I have gone through the pleadings of the parties and their respective versions and also examined the record of the case minutely and have come to the conclusion that the petitioners have miserably failed to make out a case of unfair labour practice. According to the Registration Certificate, the petitioners union i.e. Pakistan Peoples Workers Union NATCO was registered on 5-12-1993 and services of the petitioners were terminated on 18-7-1996 while the instant petition has been filed on 18-10-1997. The petitioners have not cited any specific instance of lawful trade union activities in their petition or in their affidavits in evidence which would annoy the respondents to such an extent that they would go out of their way to victimise the petitioners. Particularly when the petitioners Union is a non CBA union which is supposed to lie dormant till such time when 'they are elected as a CBA, because only a CBA union is allowed to represent the workers as laid down under I.R.O., 1969. Therefore mere allegation that the petitioners are office-bearers and members of the union and they have been terminated due to their trade union activities does not prove the case of the petitioners. Though the petitioner No. 1 in his cross examination stated that "it is incorrect to suggest that I have not given any details' of the trade union activities", but neither in the petition nor in his affidavit he quoted any such details of trade union activities. It appears that these allegations have been made with a view to bring their case within the purview of section 22A(8)(g) of I.R.O, 1969.

11. A perusal of the termination letters dated 18-7-1996 would show that services of the petitioners were terminated due to closure of Workshop at Islamabad. The contents of the said letter are reproduced below:-- "We regret to inform you that the competent authority has decided to close down the Workshop and abolish all posts of Mechanics of all grade and Helpers. The post on which you were performing your duties has also been abolished. Hence your services stand terminated with immediate effect. You will be paid one month salary in lieu of notice in accordance with provision of NATCO Service Rules You are directed to receive your final dues after production of clearance certificate"

12. It may be stated that according to the respondents, the Board of Directors of Narthern Areas Transport Corporation Ltd., in its meeting held on 30-6-1996, had decided to abolish the posts of Mechanics and Helpers performing .their duties in Islamabad Workshop and Services of the staff performing their duties against the said posts shall stand terminated. The relevant para is reproduced below:-- "The Board was informed that the Honourable Minister, KA&NA Division/Chief Executive, Northern Areas and Secretary, KA&NA Division paid a visit to NATCO Workshop, Islamabad. Briefing on workshop affairs was given. It was desired that the workshop should not be run into losses and running repairs may be carried out from open market as facilities are available in Rawalpindi/Islamabad. The Board deliberated the issue in detail and decided to abolish posts of Mechanics and Helpers performing their duties in Islamabad Workshop. Services of the staff performing their duties against the posts shall stand terminated. Engine overhauling and other renovation are being carried out from the open Market, the remaining repairs may also be carried out from the open market under supervision of the management.

13. In this view of the matter, it had been rightly contended on behalf of the respondents that services of the petitioners were terminated due to closure of the Workshop at Islamabad as per decision of the Board of Directors and therefore this Commission has no jurisdiction to interfere into the matter, because jurisdiction of the Commission is restricted and limited to the cases based on allegation of unfair labour practice. It may pertinently be mentioned here that Board of Directors of the respondent-Corporation consist of Chief Secretary, Secretary Finance, Revenue P&D, Secretary Food Agricultural and Forest, Northern Areas Gilgit and Managing Director NATCO, therefore it cannot be believed that the decision of the Board of Directors to close the workshop at Islamabad constitute unfair Labour practice. In rebutal the petitioners have failed to point out any illegality or irregularity in the aforesaid decision of the Board of Directors of the respondents Corporation, which is the base of the impugned termination orders. It may be submitted that though malice or mala fides action constitutes a very strong ingredient of unfair labour practice, but only malice does not constitute unfair labour practice.

14. Arguments were also heard on the objection raised by the respondents regarding maintainability of the petition and jurisdiction of the Commission. Learned Counsel for the respondents has submitted that this Commission has no jurisdiction to deal with the case of the petitioner in view of the insertion of section 2-A in the Service Tribunals Act, 1973 on the ground that the respondents-establishment is run, managed and controlled by the Federal Government, hence the Federal Service Tribunal has the exclusive jurisdiction to try such cases. On the other hand Representative of the petitioners has contended that aim of the main petition is to prevent commission of the acts of unfair labour practice. He further contended that the Federal Service Tribunal has no power to prevent Commission of unfair labour practice which functions have been specifically assigned to the Commission under section 22A(8)(g) of I.R.O., 1969. The relevant para of section 22A(8)(g) of I.R.O., 1969 is reproduced below:-- "Section 22-A(8)(g) ..... to take in such manner as may be prescribed by regulations under section 22-F measures calculated to prevent an employer or workmen from committing an unfair labour practice". He further contended that notwithstanding the insertion of section 2-A in the Service Tribunals Act, 1973, the jurisdiction of N.I.R.C. remains intact under section 22-A(8)(g) of I.R.O., 1969 and therefore the assumption, of jurisdiction by the N.I.R.C. is valid. Agreeing with the contention of the Representative of the petitioner, I hold that section 2-A of the Service Tribunals Act, 1973 is not applicable to the facts of this case as already held by the Full Bench of this Commission.

15. I have given my anxious consideration to the submissions made by the Representative of the petitioners and Learned Counsel for the respondents regarding allegations of unfair labour practice, I could not bring myself to agree with the petitioner that their case is based on allegations of unfair labour practice. I find that the petitioners failed in proving that on account of their trade union activities they were terminated which constitute unfair labour practice as defined under section 15 of I.R.O., 1969. They have failed to quote any specific instance of unfair labour practice on the part of the respondents, but have repeated their allegations of being victimised due to trade union activities. Mere bald allegation of unfair labour practice is not sufficient to prove victimization and make amenable for interference by the Commission. In the circumstances, the relief prayed for by the petitioners cannot be granted. According to law as laid down by the Honourable Supreme Court of Pakistan in the case of Iftikhar Ahmed PLD 1988 SC 53 followed in 1991 PLC 876, 1988 PLC 923, 1988 PLC 419 and 1994 PLC 31, this Commission has jurisdiction to interfere only if a case falls within the ambit of section 15 of I.R.O., 1969 and nothing beyond that. This provisions of law provides redress of grievance as arising out of victimization on account of trade union activities only. No other victimization even if proved is actionable by this Commission in exercise of jurisdiction cited by section 22-A(8)(g) of I.R.O., 1969. Needless to observe that termination orders of the petitioner were passed by the respondents Corporation in terms of the decision given by the Board of Directors in its meeting held on 30-6-1996, therefore, the petitioners could not be allowed to frustrate the lawful orders of the respondents by simply alleging that their terminations have been made on account of their trade union activities.

16. Upshot of the above discussion is that the petitioners fail in proving unfair labour practice on the part of the respondents. I, therefore, no hesitation in holding that this Commission has no jurisdiction to deal with this petition which is hereby dismissed. However the petitioners if so desire may file a petition before the Competent Forum for redress of their grievances. Parties are directed to bear their own costs. File be consigned to record. H.B.T./72/NIRC Petition dismissed.