1999 PLP 135 (PLC)

This order will dispose of the Application under Regulation 32(2)(c) of National Industrial Relations Commission (Procedure and Functions) Regulations, 1973 filed by Metalex Corporation Workers Union through its General Secretary supported by his affidavit to suspend the operation of lock out notice dated 14‑7‑1997, Annexure A/9 and to restrain the respondents from terminating, retrenching, dismissing and suspending the officers and members of applicant union and to direct the respondents to continue to pay wages, benefits and facilities to the members/office‑bearers of applicant union, as per law, settlement dated 22‑9‑1994, usage, custom and practice, till modified to the betterment of the members/officers of the applicant union, through collective agreement and to direct the respondents not to commit the acts of unfair labour practice and to behave in a manner calculated to avoid the occurrence of the acts of unfair labour practice.

2. On this application, interim prohibitory order was passed by this Bench of Commission on 1‑8‑1997

3. The respondents have filed objections with counter‑affidavit of Haji Younus, Managing Director of respondents' establishment and rejoinder has been filed by Naseem Ahmed, General Secretary of applicant union.

4. The application under section 151, C.P.C. also was filed by the respondents Nos. 1 to 3 supported by affidavit of Haji Younus, Managing Director of respondent establishment to dismiss the application and to recall the interim prohibitory order dated 1‑8‑1997, stating in the affidavit that Naseem Ahmed, General Secretary of applicant union had filed Complaint bearing No. 1 of 1997 before 3rd Sindh Labour Court, Karachi which was withdrawn by the applicant union and order was passed dated 25‑10‑1997 by the learned Presiding Officer, Third Sindh Labour Court, Karachi, copy of which has been filed as Annexure R/20 to the effect that Naseem Ahmed, General Secretary of applicant union confirmed that he has no grievance against the respondents as such withdrawal was allowed and the complaint was dismissed as withdrawn.

5. I have heard the arguments of M Shafique Qureshi learned Advocate for applicant and Mr. Mehboob Rizvi, learned Advocate for respondents.

6. Mr. Shafique Qureshi, learned Advocate for applicant has contended that settlement was executed between the applicant C.B.A. union and the respondent establishment for a period of three years with effect from 1‑7‑1994 to 30‑6‑1997 which has to continue for two months till either party gives notice to other party. He has contended that the notice of termination was given by the respondents, and so also by the applicant union on 1‑7‑1997. The respondents also served charter of demands on 1‑7‑1997 on the applicant union for bilateral negotiations, and they also served lock‑out notice dated 14‑7‑1997 on the applicant union. He has contended that the respondents could not serve charter of demands and notice of lock out on the applicant union before the expiry of two months of notice of termination dated 1‑7‑1997, as such the lock‑out notice is illegal. He has contended that the applicant has prima facie case, as such the interim prohibitory order passed on 1‑8‑1997 be confirmed. In support of his contention Mr. Shafique Qureshi, learned Advocate for applicant has relied on Full Bench decision of N.I.R.C. in case of General Secretary, Pak‑Saudi Fertilizer Limited, Bagging and Loading Contractor Mazdoor Union, Mirpur Mathelo v. Pak- Saudi Fertilizer Limited, Mirpur Mathelo, District Sukkur through Managing Director and 2 others reported in 1993 PLC 937 and also the order of 3rd Sindh Labour Court, Karachi in Application No.104 of 1988 of M/s. Golden Industrial (Pvt.) Limited v. Golden Industrial Employees Union through its General Secretary.

7. Mr. Mehboob Rizvi, learned Advocate for respondents has contended that the settlement had expired on 30‑6‑1997 and the respondents served charter of demands on the applicant union on 1‑7‑1997 and also notice of lock out dated 4‑7‑1997. The applicant union did not enter in to bilateral negotiations as such the matter was taken up to the Assistant Director, Labour (Conciliation), West Division, Karachi and during the pendency of the proceedings before the area conciliator the applicant union filed the present petition and obtained interim prohibitory order from this Bench of Commission. He has contended that notice of lock out dated 14‑7‑1997 has been withdrawn by the respondents on 4‑8‑1997, the main petition has become infructuous. Mr. Mehboob Rizvi, learned Advocate has contended that the applicant union has not mentioned any instance of unfair labour practice committed by the respondents or is likely to be committed by the respondents except notice of lock out dated 14‑7‑1997, which has been withdrawn by the respondents. He has contended that the respondents in their counter‑affidavit have categorically stated that the respondents have not committed any act of unfair labour practice nor they intend to commit any act of unfair labour practice. The present petition has been filed by the applicant union, so that the management shall not submit their charter of demands to the applicant union. In support of his contention Mr. Mehboob Rizvi, learned Advocate has placed his reliance on decision of Labour Appellate Tribunal, Sindh in case of Employees' Union v. Messrs Karachi Pipe Mills Ltd. reported in 1980 PLC 773 and decision of Full Bench of N.I.R.C. in the case of Boots Pharmaceuticals Limited v. Member, N.I.R.C. Bench, Karachi and another reported in 1994 PLC 476.

8. I have considered the arguments advanced by Mr. Shafique Qureshi, learned Advocate for applicant and Mr. Mehboob Rizvi, learned Advocate for respondents.

9. Admittedly the lock‑out notice dated 14‑7‑1997 has been withdrawn by the respondents on 4‑8‑1997 vide Annexure R/l, as such in my view the prayer of the applicant union to suspend the operation of Notice of lock‑out dated 14‑7‑1997 in the main petition itself has become infructuous, as such prayer in the stay application under Regulation 32(2)(c) of N.I.R.C. (P & F) Regulations, 1973 has also become infructuous. Regarding the rest prayer that the respondents shall continue to pay the wages, benefits and facilities to the members/office‑bearers of applicant union as per law, settlement dated 22‑9‑1994, usage, custom and practice, till modified to the betterment of the members/officers of the applicant union through collective agreement, it shall be pertinent to mention that on 1‑7‑1997 the respondents establishment served notice on applicant union of termination of settlement and such notice was also served by the applicant union on the respondents., The period of settlement is deemed to have expired on 1‑9‑1997, as such the applicant union cannot as right claim benefits or facilities of this settlement after its expiry on 1‑9‑1997, as such the interim prohibitory order dated 1‑8‑1997 to this effect cannot be continued. With regard to other prayer that the respondents be restrained from terminating, retrenching, dismissing and suspending the officers and members of applicant union, the applicant union has not been able to show prima facie case for grant of interim prohibitory order or balance of convenience in their favour, because there is so far no specific instance shown by the applicant union that any of office‑bearers or members have ever been victimised due to their trade union activities by the respondents. There is no document presently on record to show that at any time before, any of the office‑bearer or member of applicant union was victimised due to their trade union activities or any show‑cause notice or charge‑sheet was issued against any of them by the respondents due to their trade union activities. There are vague and general allegations made in the main petition, which cannot make out a prima facie case for grant of interim prohibitory order, restraining the respondents from terminating dismissing, retrenching or suspending the office‑bearers and members of applicant union even for their acts of misconduct committed or likely to be committed by them in the garb of general stay order to this effect granted on 1‑8‑1997. It is right of the respondents to serve charter of demands on the applicant union and likewise it is right of the applicant union to serve charter of demands for bilateral negotiations, and in case they fail to make the settlement, to take the matter to the area conciliator and in case of their failure to take the industrial dispute before the Labour Court. The applicant union has alleged that the respondents are pressurising and intimidating the office‑bearers and members of applicant union to sign the settlement of their choice, but no substantial material so far has been produced by the applicant union to substantiate this allegation. The settlement is signed by the office‑bearers of the union with the management and not by the members of the union, as such I do not find that there is any substance in the contention of the applicant union as in the main petition that members are also being pressurised and intimidated by the respondents for signing the settlement of their choice. For the aforesaid reasons, I am of view that the applicant union has not been able to make out prima facie case for grant of interim prohibitory order, as such the application under Regulation 32(2)(c) of N.I.R.C (P & F) Regulations, 1973 is dismissed and interim prohibitory order granted on 1‑8 1997 stands recalled. To come up on 2‑3‑1998 for filing affidavit‑in‑evidence by the applicant. In view of above order, the application under section 151, C.P.C. filed by the respondents on 3‑I 1‑1997 also stands disposed of. Announced in open Court. Given under my hand and seal of the Commission, this 19th day of February, 1998. H.B.T./295/N.I.R.C. Petition dismissed.