1989 PLP 443 (PLC)

(d) National Industrial Relations Commission (Procedure and Functions) Regulation, 1973‑‑ ‑‑‑Regln. 32, Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2‑ Application under Regln. 32‑‑Petitioner Union obtained an order whereby not only certain office‑bearers of respondent union but whole of respondent union had been restrained to act as such‑‑Prohibitory order modified to extent that only certain office‑bearers of said Union were restrained by virtue of that order. Saleem Baig for Petitioner. H. R. Haider for Respondents. This order will dispose of an application under Regulation 32(2) of the NIRC (P&F) Regulations, 1973 on the averments that the petitioner is a founder and active member of House Building Finance Corporation Staff Union and that the respondents Zahid Hussain Ch. is the Chairman, Muhammad Saeed is the General Secretary and S. Sajjad Haider is the Vice‑Chairman of the H.B.F.C. Employees Union which is Collective Bargaining Agent (CBA) and allegedly acted as a pocket union and the workers whose interests were jeopardized by the respondent union formed the H.B.F.C. Staff Union and moved the Registrar of Trade Unions for its registration. It was alleged that the respondents having come to know about it and started pressurising persuading and inducing the members of the staff union to cease to be member, refrain from becoming or joining the staff union and in this ulterior campaign in connivance with the management, active members of the staff union namely Amanullah Khan, Abdul Lateef Saleem Ahmad Hashmi and Shaukat Ali got transferred on 20th April, 1988 and Shamshad Ahmad on 11th June, 1988. It was also alleged that on 19th June, 1988, 78 members of the Staff Union requested the management not to pay union's subscription to the Employees Union for having become members of the Staff Union on which immediately a meeting was held on 19th June, 1988 at 2.00 p.m. in the premises of the Zonal Office and speeches were addressed and threats were extended against the Staff Union and even transfers were manoeuvred vide order, dated the 19th June, 1988 for which this Commission had to issue orders for suspension of the same orders in Case No. 4A(100)/88‑L. It was also alleged that on 22nd June, 1988 at 10.00 a.m. on the behest of the respondents, an active member of the Staff Union, namely, Muhammad Islam was physically manhandled by fist blows and kicks and extended threats of further dire consequences by the members of the Employees Union and despite medical report no action was taken by the management. It was also alleged that on 15th June, 1988 at about 2.40 p.m. The respondents visited the District Office Faisal Town and the petitioner was stopped by them and forced to sign a paper under threats of physical injuries, harm and death, containing a writing with regard to membership of the Employees Union. It was also alleged that certificate of registration was granted by the Registrar of Trade Unions on 29th June, 1988. It was prayed that the respondents be directed to restrain from pressuring the members of the Staff Union to disassociate and cease to be members of the Staff Union, not to obtain affidavits by creating pressure, restrain from manoeuvring transfers in connivance with the management of otherwise victimise them with Bard to their employment, not to act as office‑bearers of the Employees Union, 1,ot to commit other acts of unfair labour practice, not to act in detriment to the interests of the petitioner and the Staff Union and not to collect union ,subscription of members of Staff Union. Notice of the petition and this application was given to the respondents for 7th September, 1988 and meanwhile the respondents were restrained pressurising the members of the Staff Union to disassociate and cease to be members of the Staff Union and from obtaining affidavits by creating pressure And from manoeuvring transfers in connivance with the management or otherwise victimising them with regard to their employment and from acting as office-bearers of the employees Union and from committing any other act of unfair Labour practice and from acting in detriment to the interests of the petitioner and ;ire Staff Union and from collecting subscription of members of Staff Union. On 2nd August, 1988, Mr. H. R. Haider, Advocate for the respondents ppeared and moved an application for vacation of stay order and for early [caring of the case. Notice of which was given to the other side dasti for service 4th August, 1988. On 4th August, 1988 only the learned counsel for the respondents appeared alongwith Mr. Muhammad Moeen Butt and Muhammad Saeed and Arshad Shahzad and stated the service was not accepted by the petitioner as such he was proceeded ex parte. The respondent examined on Oath Muhammad Akram, S. M. Muslim Shah, Tanvecr Ahmad Naqvi, Muhammad Arif, Muhammad Aslam and Sheikh Mananullah who deposed that the employees Union neither pressurised nor issued threats to them. They also deposed that the affidavits C‑1, C‑2, C‑5, C‑6, C‑7 and C‑8 were not verified by the Oath Commissioner in their presence nor the seals were affixed before them nd that those were already typed. The case was kept for orders on 10th August,

988. Meanwhile on 8th August, 1988 Mr. Saleem Baig, Advocate appeared and loved an application to recall the ex parte order. Notice of which was given to he other side for 10th August, 1988 and on 10th August, 1988 all the respondents stated that they have got no objection to recall the ex parte order and to allow the applicant/petitioner to contest the application for vacation of stay. Accordingly ire ex parte order was recalled and the petitioner was asked to file the reply of vacation of stay application on 11th August, 1988 which was filed on that date and hereafter the respondents were asked to file their written statement and reply to he stay application on 13th August, 1988 which have also been filed contesting he application on various contentions. I have heard the learned counsel for the parties at length and also gone through the documents produced by the learned counsel for the applicant, namely, FIR dated the 6th December, 1986 mark `A' medical report mark `B', application of members of the Staff Union made to the Registrar mark `C', Affidavits of Muhammad Akram, Sh. Mananullah Sahi, Aslam Khan, Asghar Ali Ch. Muhammad Rafiq, Muhammad Rashid, Muhammad Yaqub Bhatti, AbdulHameed, Ali Murtaza, Syed Muslim Shah, Muhammad Arifullah, Muhammad Ashraf Tanveer Ahmad Naqvi and Abdur Rchman marks D‑1 to D‑14, circular letter No. 427 dated the 20th July, 1988 mark `E' and the documents produced by the learned counsel for the respondents, namely, order dated the 3rd July, 1988 of Punjab Labour Court No. 3 mark `F and order dated the 9th July, 1988 mark `H and order dated the 30th July, 1988 mark H and affidavits of Muhammad Akram Steno, Syed Muhammad Muslim Shah, Muhammad Ashraf Chowkidar, Muhammad Rafique, Tanvir Ahmad Naqvi, Muhammad Arifullah, Muhamrnad Aslam Khan and Sh. Mananullah Sahi marks `l‑1 to I‑8'. The preliminary objection of the learned counsel for the respondents is that the petitioner has filed a Misc. application which is not independent application under Regulation 32(2) of the NIRC (P&F) Regulation, 1973. He has particularly referred to para‑1 of the application wherein it is written that the petitioner has filed the accompanying petition under section 22‑A(8)(g) contents of which may be read as an integral part of this application. He relied upon 1987 P L C

675. The contention is not sound because for an application under Regulation 32(2) of the NIRC (P&F) Regulations, 1973, a case of unfair labour practice likely to occur must be alleged and made out on the face of application. In the present case it is mentioned in the application that the contents of the main petition may be read as integral part of this application which when read constitute that certain unfair labour practices have alreadly allegedly committed and certain unfair labour practices are such the recurrence of which is most likely to occur in future such as pressurising the members of the Staff Union to disassociate and cease to be members of the Staff Union, obtaining of affidavits by creating pressure manoeuvring of transfers in connivance 'With the management or to victimise to them otherwise, acting in detriment of the interests of the petitioner and the Staff Union and collecting union subscription of members of the Staff Union. This being the situation, the application is competent and this Commission has got jurisdiction. The next contention of the learned counsel for the respondents is that the application is not supported by an affidavit. In this case the main petition is supported by an affidavit of Zafar Iqbal Bhatti concerning all the allegations in the main petition which is integral part of the application under Regulation 32 as such there was no need to file further affidavit. The next contention of the learned counsel for the respondents is that an office‑bearer working for his union cannot be stopped by this Commission to work as such by passing an order in an application under Regulation 32(2). This contention is also not sound because power is available to the Commission in section 53(4) and in this case a separate complaint has also been filed by the petitioner. The next contention of the learned counsel for the respondents is that the petitioner has not come with clean hands and that the petitioner union H.B.F.C. Staff Union was registered by using the names of the rnembers of the Employees Union and that its registration was suspended by Punjab Labour Court No. 1 and an enquiry has been ordered. The documents relied upon from the both sides are the orders of the Punjab Labour Court No. 1,'Lahore passed on 3rd July, 1988 whereby on a petition by the Employees Union against the Staff Union with the prayer that the registration certificate, dated the 27th June, 1988 be suspended, the order was suspended and on 9th July, 1988 status quo was ordered to be continued and on 30th July, 1988 on the offer of the Employees Union that Registrar should provide them opportunity to produce the persons who had been the members of the employees Union and who had, been shown as members of the staff union and on the strength of whom the Staff Union has been successful in obtaining the registration of the union. The offer was accepted by the Staff Union and the learned Presiding Officer of Punjab Labour Court No. 1 directed that the Registrar should provide the opportunity to produce the persons whose membership has been claimed by the Staff Union and then the Registrar should decide whether the Staff Union has the required membership for registration and proceed according to law and the present position was ordered to remain unchanged and the petition was disposed of accordingly. In other words the registration certificate is in tact and only its operation is suspended till the enquiry is completed by the Registrar. Unless the registration is C cancelled it cannot be said that the Staff Union has no right to come to the Commission to seek remedy of an alleged unfair labour practice likely to occur under Regulation 32 of the NIRC (P&F) Regulations, 1973. In order to dispose of an application under Regulation 32(2) of the NIRC (P&F) Regulations, 1973, the applicant is to show that the case of unfair labour practice is likely to occur which he has shown and in case the propitiatory order is not passed in favour of the applicant restraining the respondents from committing the acts referred to in the application he would be put to great inconvenience and would also suffer irreparable loss. The learned counsel for the respondents has also contended that the petitioner has obtained an order whereby not only the Chairman, Vice‑Chairman and the General Secretary have been restrained to act as office‑bearers of the E Employees Union but also the House Building Finance Corporation Employees Union has been restrained to act as such. This contention has got full force as such I modify the order, dated the 28th July, 1988 to the extent that only respondents Nos. 1, 2 and 3 are restrained from acting as office‑bearers of the Employees Union. The rest of the order dated the 28th July, 1988 is confirmed and the application under Regulation 32(2) of the NIRC (P&F) Regulations, 1973 stands allowed accordingly. No order is made as to costs. M.Y.H./N‑134/NIRC Order accordingly.