2011 PLP 238 (PLC)

BASHIR AHMED MEMON (MEMBER).

The present petition has been filed by the petitioners under section 25 read with sections 17, 26 and 32 of the IRA, (R&A) 2010 claiming that petitioner No.1 is collective bargaining agent in the establishment of respondents determined through secret ballot whereas petitioners Nos.2 to 12 are workmen employed with respondent management. The petitioners through this petition have challenged the maintainability, propriety and legality, of Circular No.34/2010 dated 21-7-2010 titled as "Performance Management System for non-management staff "Annexure P). It has been alleged by the petitioners that the above said circular has been issued in order to target the unionized staff working in the respondent establishment which is an act of unfair labour practice.

2. Along with main petition application for interim stay has been filed and while admitting the petition interim stay order was granted in favour of the petitioners.

3. Upon service of notice the respondents filed their comments and counter affidavit denying the allegation of unfair labour practice and have asserted that Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 recognizes the rights of the employer and in order to get improvement in the working of its staff an employer is authorized to check the working of the workmen and in view of that circular dated 21-07-2010 (Annex.P) has been issued and there is no ulterior motive behind issuing of this circular.

4. I have heard the arguments of both the learned counsel appearing on behalf of the parties.

5. Leaned counsel appearing on behalf of the petitioners submitted that there is a system of agreement between the parties under the provisions of IRA, 2008/2010 and there is also system of maintaining good terms which cannot be disturbed and while introducing the Performance Management System the respondents management has tried to check performance twice a year whereas in all the Government functionaries there is a system of Annual Confidential Report (ACR) and Efficiency and Disciplinary Rules are also available to the Government employees and on the basis of ACR a civil servant is not being issued any charge-sheet and it is only communicated to an employee and if the system has been borrowed from Efficiency and Disciplinary Rules it does not by-pass the provisions of Standing Orders 15 as evaluation report twice a year is contradictory to the Standing Orders Ordinance, 1968 and terms of employment could not be changed for disadvantage of an employee. It is argued that very recently the respondent management has issued VSS which was introduced only in order to reduce the unionized workers and the present circular has also been issued with mala fide and ulterior motive to reduce the unionized workers.

6. Learned counsel appearing on behalf of the respondents has argued that the respondent management has every right to check the working of its employee and get the improvement in the working of its worker and the present petition has been purposely filed where petitioner No.1 is CBA whereas the rest of the 11 persons are workmen and the CBA as per rule is not supposed to espouse the cause of individual worker. It is argued that earlier similar type of petition was filed bearing No.4A(40)/2010 challenging the circular in respect of IBC issued by the respondent management and the said petition filed by the CBA was dismissed. It is argued that in all the establishments like the respondent there is full fledge Human Resources Department which works for getting more and best result from the workman and the present circular is also issued by the Human Resources Department, which is just a Performance Evaluation system whereas the ACR system is functioning in the Government functionaries and the respondent establishment is a public limited company and the Civil Service Rules are not available to the workmen/employees of the respondent management and the respondent management in all spirits is following the Standing Orders Ordinance, 1968 and it cannot go beyond the provision of Standing Ordinance regarding issuing of charge-sheet and initiation of inquiry proceedings etc. and the respondent management has not attempted to modify the Standing Orders Ordinance. The Standing Orders Ordinance provides giving chance issuance of show-cause notice and hearing and it is not possible for the respondent management to retrench thousands of workmen on the basis of performance report which is only to improve working of its employees.

7. I have considered the arguments advanced by both the learned counsel for the parties and have gone through the material placed on record by both the parties.

8. Earlier the CBA union had challenged the issuance of circular regarding IBC and the purpose behind the same was providing good facility to the consumer/customer. While issuing present circular (Annex.P) the respondent management only wanted to get the improvement of working of its employees.

9. In a decided case reported in 2010 PLC (C.S.) 789 Full Bench of honourable Supreme Court of Pakistan has observed that: "Termination of service

Performance of employees

Commercial organization

Business targets

Respondents were employees of Insurance Corporation and their services were terminated on account of their poor performance, as they failed to achieve requisite targets of business-Service Tribunal allowed appeals filed by employees and reinstated them in service

Validity

Performance standard was in fact the condition prescribed under Regln. 4(ii)(c)(1)(2) of State Life Employees' Service Regulations, 1973-Insurance Corporation was a commercial organization therefore, its employees were bound to show performance, otherwise it would be difficult for the organization to continue its existence

Where rules/regulations were to be construed/applied and incorporated strictly-Judgment passed by Service Tribunal was set aside by Supreme Court-Appeal was allowed."

10. It is also well-settled law that under the provisions of IRO, 1969 and IRA, 2008/2010 the CBA can approach only for the enforcement of right guaranteed and secured to it and it cannot espouse the cause of individual workman and in this respect order passed by the Full Bench of this Commission in Appeal No.12(99)/1996/24(307)/1996 is relied upon. In view of above facts and circumstances it is established that the petitioners have failed to make out a prima facie case for grant of any relief. Accordingly not only the stay application but main petition also stands dismissed. H.B.T./12/NIRC Petition dismissed.