2008 PLC 330 (PLP)

MUHAMMAD SHABBIR JAMAL (MEMBER).

Through this petition, filed under section 56 of the Industrial Relations Ordinance, 2002 (hereinafter to be referred as I.R.O.), the petitioner Federation which is C.B.A. has invoked the jurisdiction of this Commission for the determination of an industrial dispute wherein the following demands have been raised:-- (1) The worker employed by the contractor Messrs Human Resource Service and working in the Allied Bank may be awarded the same facilities of house rent, conveyance allowance, medical allowance, bonus, pension and all other benefits which are admissible to the regular workers of Allied Bank. (2) The fixed rate employees designated as Cash Sorters working in all the branches of the Allied Bank may also be given facilities of the house rent, conveyance, medical allowance, bonus, pension and all other facilities which are admissible to regular employees or workers. (3) The Cash Sorters may also be provided a line of promotion to cashier and those who are qualified to become Cashiers should be posted against the vacancies. The written reply filed by the respondent bank also raised preliminary objections. The case was subsequently argued by the learned counsel of the parties. The main objections of the respondent bank are that the petition is misconceived and the procedure prescribed by the law for raising industrial dispute has not been followed. The learned counsel for the respondent Bank has also taken the plea that in section 56 the term "employers" and the term "establishments" have been used in plural. It is argued that section 56 of I.R.O. says that if a federation of industry wise trade unions which is C.B.A. raises an industrial dispute it shall be binding on all employers and workers of the establishments represented by the federation. It is contended that a dispute in any case shall be raised in the prescribed manner, because it is clearly stated in section 35 of I.R.O. that no industrial dispute shall be deemed to exist unless it has been raised in the prescribed manner. It is further argued that the prescribed manner has been laid down in sections 25(1) to 31(3) of I.R.O. It is argued that this manner is applicable to all kinds of disputes including the one mentioned in section 56 ibid. It is argued that there is no short cut to straightaway file the industrial dispute before NIRC for adjudication because to do so is against the spirit of I.R.O. It is argued that section 56 visualizes a federation of trade unions for a number of establishments and not for a single establishment. It is explained by the learned Counsel that the word "establishments" in plural is accompanied by the word "employers" also in plural. It is contended that this section visualizes a situation where a federation of trade unions is collective bargaining agent for a number of establishments belonging to different employers. It is argued that it is in this context that the order of Commission will be applicable to all employers. It is contended that in this matter, before this Commission the petitioner federation is C.B.A. for a single establishment of Allied Bank Limited within the meaning of the definition of the turn "establishment" as contained in section 2(xi) of I.R.O. It is contended that section 56 of I.R.O. therefore cannot be attracted for the present petition and so the same is misconceived. In support of his contention the learned counsel has emphatically argued that procedural imperative under the law is essential to be complied with for the sake of undertaking the process of social dialogue to be followed to resolve an industrial dispute before the same goes to a judicial forum for adjudication.

3. The objection has also been raised in that it is also against the spirit of I.R.O. that at the same time the petitioner federation in its capacity as C.B.A. raises a number of disputes and is let to pursue them at number of fora. The learned Counsel in this regard drew attention to the fact that the same C.B.A. had raised dispute vide Charter of Demands dated 30-5-2006 which is now pending before this Bench as Case No.9(03) of 2006. It is stated that the same Federation earlier raised a dispute bearing No.9 (01) of 2003. It is argued that nothing prevented the said federation from one composite dispute, for one composite settlement or adjudication. It is contended that the settlement would be torn into shred and tatters if the federation/union repeatedly raises disputes.

4. In so far as the demands contained in the current dispute are concerned, it is contended by the learned Counsel that demand one has no merit as the employees of contractor are not the direct employees of ABL and so no industrial dispute can be raised in respect of the non-employees of ABL. As regards demand two concerning provision of certain benefits of Cash Sorters, the learned Counsel has contended that if these are employees of ABL they can claim these benefits as a matter of right under section 46 of I.R.O. and so it does not constitutes subject matter of industrial dispute to be raised by the C.B.A. It is stated that five persons to be called Cash Sorters filed grievance petition claiming wrongful termination which was dismissed and subsequently order of the Labour Court in their case has attained finality since the same has not been assailed in appeal. It is contended that no documentary proof has been brought forth on record to show that any Cash Sorter is an employee of the Bank.

5. On the other hand, it is contended by the learned counsel for the petitioner federation that the petition is not misconceived as in the absence of non obstante clause of section 56 of I.R.O. the petitioner federation is well within its right to bypass all the procedures provided under the law for resolving industrial dispute. It is contended that it is the choice of the federation if it is certified as C.B.A. to follow the procedure of social dialogue as contained in sections 25-31 of I.R.O. or invoke the jurisdiction of NIRC under section 56 (ibid). It is, stated by the learned Counsel that it is however for the first time that the petitioner federation has chosen the latter recourse for determination of the above industrial dispute. It is contended that this choice is for the reason that the management of the respondent Bank has closed down the opening of the procedure of social dialogue to the petitioner federation and therefore it is constrained to adopt the way of litigation. It is argued that by adopting the latter recourse of determination of industrial dispute the C.B.A. has given up its right to strike under the law. It is further argued that in this way the petitioner federation has acted in the interest of the Bank as it cannot be closed on any working day under the Negotiable Instruments Act.

6. The learned counsel for the petitioner federation has controverted the position taken up by the learned counsel for the opposite party with regard to the demands contained in the Charter submitted as industrial dispute for determination by this Bench by saying that the demand one concerns the persons employed by the contractor for the Bank and so those are workers of the Bank within the meaning of the definition of "worker" as contained in I.R.O. As regards demands two and three- concerning the issue of Cash Sorters, it is contended by the learned Counsel for the petitioner that it has been assigned a wrong interpretation by the learned Counsel of the other party. It is contended that Cash Sorters are already permanent employees and the demand is to make them regular and to allow them facilities and benefits as admissible to regular employees. It is contended that the petition filed by some Cash Sorters was dismissed in default. It is clarified that the demands is in respect of all Cash Sorters employed by the Bank and not only four five such employees as contended by the Bank.

7. The point of non obstante clause as made out by the learned Counsel for the petitioner to justify his contention that NIRC can determine an industrial dispute if brought to it directly by industry-wise federation having the status of C.B.A. has been resisted by the learned Counsel for the Bank. It is argued by the letter that this point has been dealt with by Lahore High Court in the Case reported as 1979 PLC

377. It is argued that section 56 does not prescribe any procedure for raising a dispute. It is contended that it is settled law that no nobstante clause overrides the other provisions but only to the extent provided in the non obstante clause. It is argued that in this case since no procedure is prescribed in the non obstante clause, the procedure provided in the law for raising and settling an industrial dispute has to be followed.

8. I heard the arguments of the learned counsel of the parties and carefully gone through the contents of the case file. Main issue before me is to determine as to whether the instant petition has validly invoked section 56, of I.R.O. for determination of the industrial dispute raised by the petitioner federation or the petition is totally misconceived in the eyes of law. Before I give my finding in this regard I intend to go through section 56, section 35, and section 25 to 31, of I.R.O., 2002 which are reproduced below:--

56. Raising of industrial dispute by a federation.

(1) Notwithstanding anything contained in this Ordinance, a federation of industry-wise trade unions or a federation at the national level may, if it is a collective bargaining agent, raise an industrial dispute affecting all employers or workers of the establishment represented by that federation and a decision of the Commission shall be binding on all such employers and workers. (2) No collective bargaining agent shall, at any time when a decision of the Commission in respect of any matter is effective, be entitled to raise a demand relating to that matter.

35. Raising of industrial dispute.

No industrial dispute shall be deemed , to exist unless it has been raised in the prescribed manner by a collective bargaining agent or an employer.

25. Negotiations relating to differences and disputes.

(1) If at any time an employer or a collective bargaining agent finds that an industrial dispute has arisen or is likely to arise, the employer or, as the case may be, the collective bargaining agent may communicate his or its views in writing to the other party. (2) On receipt of the communication under subsection (1), the party receiving it shall try to settle the dispute by bilateral negotiations within fifteen days of the receipt of the communication or within such further period as may be agreed upon by the parties and, if the parties reach a settlement, a memorandum of settlement shall be recorded in writing and signed by both the parties and a copy thereof shall be forwarded to the Conciliator and the authorities specified in clause (xxvi) of section 2. (3) Where a settlement is not reached between the employer and the collective bargaining agent, the employer or the collective bargaining agent may, within fifteen days from the end of the period referred to in subsection (2), serve on the other party to the dispute a notice of conciliation, in accordance with the provision of this Ordinance.

26. Conciliator.

(1) The Provincial Government shall, by notification in the official Gazette, appoint as many persons as it considers necessary to be Conciliators for the purposes of this Ordinance and shall specify in such notification the area within which, or the class of establishments or industries in relation to which, each one of them shall perform his functions. (2) The Federal Government shall, by notification in the official Gazette, appoint as many persons as it considers necessary to act as Conciliators in such disputes as the National Industrial Relations Commission is competent to adjudicate and determine under this Ordinance. (3) A tripartite Board of Conciliators, hereinafter called the Board, consisting of men of standing competence shall be appointed on the request of the party rising the dispute, by the Federal Government or by a Provincial Government, as the case may be, by notification in the official Gazette, to conciliate in an industrial dispute involving more than one establishment in a province or in an industry at national level or in an industrial dispute of national importance, if the negotiations are not satisfactorily progressing. (4) The Board constituted under subsection (3) shall stand dissolved on the settlement of dispute or on the failure of conciliation proceedings.

27. Period of notice of conciliation.

The period of a notice of conciliation under subsection (3) of section 25 shall be fifteen days.

28. Conciliation after notice.

Where a party to an industrial dispute serves a notice of conciliation under subsection (3) of section 25, it shall, simultaneously with the service of such notice, deliver a copy thereof to the conciliator who shall proceed to conciliate in the dispute and to the Labour Court.

29. Proceedings before Conciliator.

(1) The Conciliator or the Board shall as soon as possible, call a meeting of the parties to a dispute for the purpose of bringing about a settlement. (2) The parties to a dispute shall be represented before the Conciliator of the Board by persons nominated by them and authorized to negotiate and enter into an agreement binding on the parties: Provided that if, in the opinion of the Conciliator or the Board, the presence of the employer or any office-bearer of the trade union connected with the dispute is necessary in a meeting called by him, he or, as the case may be, it shall give notice in writing requiring the employer or such office bearer to appear in person before him or it at the place, date and time, specified in the notice and it shall be the duty of the employer or the office-bearer of trade union to comply with the notice. (3) The Conciliator or the Board shall perform such functions in relation to a dispute before him or it as may be prescribed and may, in particular suggest to either party to the dispute such concessions or modification in its demand as are in the opinion of the Conciliator or the Board likely to promote an amicable settlement of the dispute. (4) If a settlement of the dispute or of any matter in dispute is arrived at in the course of the proceedings before him or it, the Conciliator or the Board shall send a report thereof to the Provincial Government or the Federal Government, as the case may be, together with the memorandum of settlement signed by the parties to the dispute. (5) If no settlement is arrived at within the period of a notice of conciliation, the conciliation proceedings may be continued for such further period as may be agreed upon by the parties.

30. Arbitration.

(1) If the conciliation fails, the Conciliator shall try to persuade the parties to agree to refer the dispute to an arbitrator, and in case the parties agree, they shall make a joint request in writing for reference of the dispute to an arbitrator agreed upon by them. (2) The arbitrator to whom a dispute is referred under subsection (1) may be a person borne on a panel to be maintained by a Provincial Government or the Federal Government as the case may, be or any other person agreed upon by the parties. (3) The arbitrator shall give his award within a period of thirty days from the date on which the dispute is referred to him under subsection (1) or shall further period as may be agreed upon by the parties to the dispute. (4) After the arbitrator has made the award, he shall forward a copy thereof to the parties and to a Provincial Government or the Federal Government, as the case may be, who shall cause it to be published in the official Gazette. (5) The award of the arbitrator shall be final and no appeal shall lie against it and shall be valid for a period not exceeding two years or as may be fixed by the arbitrator.

31. Strike and lock-out.

(1) If no settlement is arrived at during the course of conciliation proceedings and the parties to the dispute do not agree to refer it to an arbitrator, under section 30, the workmen, subject to a seven days' notice to the employer, may go on strike or, as the case may be, the employer may declare a lock-out on the expiry of the period the notice under section 27 or upon a declaration by the Conciliator or the Board that conciliation proceedings have failed, whichever is the later. (2) The party raising a dispute may at any time, either before or after the commencement of a strike or lock-out, make an application to the Labour Court for adjudication of the dispute. (3) Where a strike or lock-out lasts for more than fifteen days the Federal Government, if it relates to a dispute which the Commission is competent to adjudicate and determine, and a Provincial Government, if it relates to any other dispute, may, by order in writing, prohibit the strike or lock-out: Provided that the Federal Government may respect to a strike or lock-out relating to a dispute which the Commission is competent to adjudicate and determine and the Provincial Government, with the pervious approval of the Federal Government may, with respect to any other strike or lock-out, by order in writing prohibit a strike or lock-out at anytime before the expiry of thirty days, if it is satisfied that the continuance of such a strike or lock-out is causing serious hardship to community or is prejudicial to the national interest: Provided further that the Federal Government or a Provincial Government, as the case may be, shall prohibit, by an order in the official Gazette, the commencement of a strike or lock-out, as the case may be, if the same, in the opinion of the Government concerned, is detrimental to the interest of the community at large. (4) In any case in which the Federal Government or a Provincial Government prohibits a strike or lock out it shall forthwith refer the dispute to the Commission or, as the case may be, the Labour Court. (5) The Commission, or as the case may be, the Labour Court shall, after giving both the parties to the dispute an Opportunity of being heard, make such award as it deems fit-as expeditiously as possible but not exceeding thirty days from the date on which the dispute was referred to it: Provided that the Commission, or as the case may be, the Labour Court may make an interim award on any matter of dispute: Provided further that any decision by the Commission or, as the case may be, the Labour Court in making an award shall not affect the validity of any award by it. (6) An award of the Commission or, as the case may be, the Labour Court shall be for such period, as may be specified in the award, but shall not be for more than two years.

9. It appears from section 25(1) above that an industrial dispute can be raised in their own right both the employer as well as by trade union of workers having the status of C.B.A. In order to be effective in their respective positions the workers can exercise the right to strike and the employer has the right to declare lockout. Social dialogue or in other words process of collective bargaining is a prerequisite for successful conclusion of an industrial dispute raised by any of the two sides of the industry, whether it ends in the form of agreement as result of bilateral negotiation, or a settlement as a result of conciliatory efforts or by an award of Arbitrator or Labour Court or of NIRC, depending upon the situation or circumstances of the matter. Since `industrial dispute' by its definition contained in I.R.O., 2002 relates to matter of interests and not matters of rights, it ought to be initiated by the process of social dialogue and not by straightaway knocking at the door of a judicial forum for adjudication. In the latter way it would obviously defeat the purpose of the law in existence. Now the question is whether the instant petition visualizes that a federation of workers only and not the employer has been privileged under section 56 above to cut short the procedure without any condition to file the dispute before NIRC for adjudication? If so, then what is the logic to create this right in workers' organization only and not in employers? From the plain reading of this, section it appears that no such privilege or right on the other hand is available to employers or their organization under this section. The law in fact is that the employer and workers both inherently have the right to raise an industrial dispute. In this view of the matter I do not think the position of the law is one that has been interpreted by the learned Counsel for the petitioner. I am sure that the object of the law cannot be to disrupt the balance in the legal rights of both the parties, workers and the employer. As this section commences with the word, "notwithstanding", it by structure of the language obviously is a non obstante clause, its intention for the purpose of the section ibid, to my understanding, is to cover the situation that has not been addressed elsewhere. I understand that this section has been included in the law simply to give binding effect to the decision of the Commission in the dispute if the same, after the procedure of social dialogue or conciliation is exhausted, is placed before it for its determination. Had this non obstante clause meant to take the dispute before the Commission straightaway, the law would have been clearly laid down in that case, both for employers and workers providing enabling procedure. Therefore, the petition to my mind is not based on the correct appreciation of the existing law. Also, I nevertheless do not dub it as a rational approach on the part of the petitioner federation to first file this dispute under section 56 above (which of course does not give it such right) and subsequently to raise another dispute in the prescribed manner which is now pending before me in Case No.9(03) of 2006 for adjudication. The question is what was the exigency to raise the existing dispute in an unwarranted manner? I feel that it does not underpin the proper role of a C.B.A. which by its designation is meant to promote workers' interests through the process of collective bargaining or negotiation. The petitioner federation could include the demands of the instant dispute in the subsequent dispute in a composite manner. Therefore, the instant petition is totally misconceived in eyes of law of which relevant provisions have been reproduced above as well as by the conduct of the C.B.A. by acting in a slipshod manner. In view of section 35 above it is clear that no industrial dispute can be raised in a manner other than the prescribed one. Since the petition is misconceived, I am not inclined to adjudicate upon it. I therefore also do not want to discuss the merit of the demands and other issues raised in the present petition. Even I do not think it desirable to prolong the case by going for any evidence except the pleadings on the basis of which I decide this case. Since the merits of the case are not to be accounted for I do not assume jurisdiction for determination of the dispute. As the petition has no force of law, the same is dismissed as misconceived. H.B.T./29/NIRC Petition dismisse