2008 PLP 392 (PLC)

MUHAMMAD SHABBIR JAMAL (MEMBER).

Through this petition C.D.A. Mazdoor Union which is C.B.A. has invoked the jurisdiction of NIRC under section 49(4)(e) of Industrial Relations Ordinance, 2002 on the ground that the Management has earmarked Rs.21.180 Million for house building and motorcycle advance in response to the demand raised by the General Secretary of C.D.A. Employees Federation (Mazdoor Dost Group) which is not a C.B.A. union, contending that this act of the Management is an unfair labour practice within the meaning of section 59(1) of the said Ordinance. It is further contended that it is the right of the C.B.A. to raise an industrial dispute to undertake collective bargaining with the Management as provided in section 20(13)(a) of the Ordinance ibid. It is also contended that in the light of section 35 of this Ordinance no industrial dispute shall be deemed to exist unless it has been raised in the prescribed manner (as provided in sections 25 to 29 of the said Ordinance) by Collective Bargaining Agent. It is also contended that after an industrial dispute has been raised settlement can be reached between management and the collective bargaining agent either with or without assistance of the Conciliator, appointed by the Government.

2. The original petition which was filed on 30-11-2007 was subsequently amended in respect of respondents after allowing the application of C.D.A. Employees Federation, an intervener, to implead them as a necessary party as a respondent with the direction that the amended petition will be filed only by amending the title of the petition without changing the substance of the main petition.

3. The written replies were filed to the amended petition by respondents Nos.1 and 2 (C.D.A.) as well as respondent No.3 i.e. employees Federation of C.D.A. (a non-C.B.A. Union) through their learned counsel. The matter was argued by the learned counsel of the parties. The learned counsel for the petitioner, Mr. Mushtaq Hussain Bhatti orally argued the matter whereas learned counsel for respondents Nos.1 and 2 and respondent No.3 filed written arguments requesting that the matter may be disposed of expeditiously in view of its urgency as the amount in question is to be disbursed before the close of the current financial year, as reflected in the order, dated 15-4-2008.

4. The learned counsel for the petitioner union has reiterated the legal provisions as pleaded in the main petition. It is prayed that direction be issued to the. respondents 1 and 2 (C.D.A.) not to release the amount of house building advance and motorcycle advance through the Employees Federation of C.D.A. (Mazdoor Dost Group) but the sitting C.B.A. be associated for disbursement of amount to C.D.A. employees in furtherance of section 20(13)(b) of I.R.O., 2002. It is also prayed that the C.D.A. be restrained from entertaining any such request in future from the non-C.B.A. groups in the C.D.A., so as to avoid unhealthy reflection in the field of trade unionism and C.B.A. relationship in fostering peace and tranquility in the respondent-Establishment.

5. The learned counsel for respondents 1 and 2 in the written statement as well as in the written arguments has challenged the maintainability of this petition on the ground that the same has been filed under section 59(1) of I.R.O., 2002 which is applicable only when a settlement within the meaning of section 2(xxvi) of the aforesaid Ordinance is signed in the life of C.B.A. It is contended that since no such settlement has been signed, petition is not maintainable. It is further contended that no demand notice has been served by any non-C.B.A. under section 25(1) of I.R.O., 2002 nor any meeting of social dialogue has been called. It is further contended that it has been laid down in section 35 that no industrial dispute shall be deemed to exist if not raised in the prescribed manner. It is also contended that no correspondence has taken place by the management with non-C.B.A. union. Based on these main objections the learned counsel has opposed the contentions of the learned counsel for the petitioner.

6. The learned counsel for respondent No.3 has taken the plea in line with that of the learned counsel for respondents Nos. 1 and 2 in that the petition is not maintainable in the eye of law. He has argued that the petition having no merits is liable to be dismissed. It is contended by him that the case of the petitioner therefore is not attracted by the provisions relating to unfair labour practice. He is also on the same plane in interpreting section 59(1) of I.R.O., 2002 as explained by the learned counsel for respondents Nos.1 and

2. He has however argued that the petition though has been filed by the C.B.A. the Bench of NIRC has to deal with it in the manner as laid down in section 33 of I.R.O., 2002 and not in any other manner. It is further argued by him that the petition in place does not disclose as to which right guaranteed or secured to the petitioner has been infringed or violated. He has also taken the plea that C.B.A. under the law is bound to negotiate or enter into settlement or an agreement for the enforcement of any right guaranteed or secured to workers. It is argued that the petitioner union itself is guilty of discrimination, therefore is not entitled to any equitable relief based on the principle of law and so his petition merits dismissal. It is contended that the documents produced by the petitioner are sufficient to establish his discriminatory attitude to wards the opponent groups of workers. He has therefore, prayed that the petition be dismissed accordingly.

7. Before I arrive at specific conclusions I feel inclined to go through section 59, section 35 and section 20(13) (a and b) of I.R.O., 2002 as cited in the petition and resisted by the opposite parties. The same are reproduced below:-- 20(13)(a) and (b) Collective bargaining agent in relation to an establishment or group of establishments shall be entitled to:

(a) undertake collective bargaining with the employer or employers on matters connected with employment, non-employment, the terms of employment or the conditions of work, other than the matter which relates to the enforcement of any right guaranteed or secured to it or any award or settlement; (b) represent all or any of the workmen in any proceedings;

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.

59. Settlement and awards on whom binding.

(1) A settlement arrived at in the course of a conciliation proceeding or otherwise between employer and a collective bargaining agent or an award of arbitrator published under section 30, or an award or decision of a Labour Court delivered under section 37, or the decision of a High Court under section 48 shall be

(a) binding on all parties to an industrial dispute; (b) binding on all other parties summoned to appear in any proceeding before a Labour Court as parties to an industrial dispute, unless the Labour Court specifically otherwise directs in respect of any such party; (c) binding on the heirs, successors or assignees of an employer in respect of the Establishment to which an industrial dispute relates where the employers is one of the parties td that dispute; and (d) binding, where a collective bargaining agent is one of the parties of a dispute, on all workmen who were employed in Establishment or industry to which an industrial dispute relates on the date on which the dispute first arose or who are employed therein after that date: Provided that, where a collective bargaining agent or a trade union performing the functions of a collective bargaining agent under section 20 exists, the employer shall not enter into a settlement with any other trade union, and any contravention of this provision shall be deemed to be an unfair labour practice under section 63. (2) A settlement arrived at by agreement between an employer and a trade union otherwise than in the course of conciliation proceedings shall be binding on the parties to the agreement.

8. I have carefully gone through the above provisions of law, arguments of the learned counsel of the parties and contents of the petition. In the first instance assume the jurisdiction that a serious concern/apprehension has been expressed about the unfair labour practice likely to occur if the amount in question, earmarked on, the demand of a non-C.B.A. is disbursed without involving C.B.A. in the process/activity. The spirit and philosophy of the law is that it is the right of the C.B.A. to espouse the cause of workers and represent workers or a class of workers in any proceeding. If the Management bypasses C.B.A. it will be under-valuing the representative character of the C.B.A. in collective matters concerning workers interests that form the basis of an industrial dispute as defined in section 2(xvi) of I.R.O., 2002. Of course when a non-C.B.A. Union namely, Employees Federation of C.D.A. (Mazdoor Dost Group) has demanded for workers motorcycle and house building advance as evident from the office note of C.D.A. appended to the petition (page 6), it has obviously constituted a matter of interest. Notwithstanding the procedural technicalities as pointed out by the learned counsel for the respondents in their arguments if as a result of such demand the Management which has just initiated process accordingly completes the action it would straightway adversely prejudice C.B.A.'s position as apparent from the above legal provisions concerning C.B.A.'s rights and functions. The management under the law in fact is duty-bound to deal with C.B.A. and no other union. The law and practice that overwhelmingly rely on C.B.A.'s role in the uplift of workers employment conditions. If management does any collective activity for the benefit of workers with the union having no representative status the question is how it would be a fair deal. To my mind it is not at all. Therefore I hold that the petitioner has rightly invoked the jurisdiction under section 49(4)(e) read with section 59 and section 20(13) of I.R.O., 2002.

9. In this case an amount for motorcycle advance and house building advance has been earmarked as stated in the office note of C.D.A. (page 6), letter dated 10-11-2007 (page 7), office note at page 8 and letter dated 14-11-2007 (page-9). The sitting C.B.A. resisted this move vide letter (page 10) addressed to the C.D.A. Chairman. Now a couple of questions arise; should or should not the amount so earmarked be disbursed amongst workers? If it is disbursed, how its disbursement be legitimized and on what grounds? What criteria should be followed? Would it be construed the result of a non-C.B.A. initiative at the cost of C.B.A.? If not, how this phenomenon will be addressed? Can it be on management's own motion or initiative? What measures are needed to enforce management-C.B.A. trust relationship? What is practical solution of the current issue?

10. Before these questions are looked into to find out a possible solution or to reach a judgment, it would be pertinent to see the role of a non-C.B.A. Union in the context of the existing legal frame work of industrial relations system of our country. Obviously a non-C.B.A. Union, if registered, like any other registered union enjoys immunity from civil suit under section 16 of I.R.O., 2002 and according to section 15 of the same Ordinance the law of criminal conspiracy is also limited in application for its lawful trade union activities and in that there is no differential treatment of law between C.B.A. and non-C.B.A. in this regard. The difference only appears when one of the contestant registered trade unions is determined as C.B.A. to undertake collective bargaining and perform all other functions entrusted to it by the law. However, in no other sense a non-C.B.A. Union can be segregated from the overall system of industrial relations. Every registered trade union for its good conduct and credibility has inherited right to earn popularity for better score in future but not at the cost of the role of C.B.A. in power. This system conceptually is based on sportsman spirit and cooperation according to democratic norms but in no manner it should be based on trade union rivalry or to under estimate C.B.A. in power as evident from the present case. Entertaining a non-C.B.A. Union by the management against C.B.A. or vice versa is equally an unfair act and is to be treated as an impediment in the smooth functioning of industrial relations system. It merits rejection. The role of non-C.B.A. union therefore continues to be that of a group of workers distinguishable from others only in terms of their specific ideology which they can exercise if at the time they come into power as C.B.A. Till that time members of all trade unions including those of C.B.A. and all other workers in an organization are entitled to benefits and rights secured through a collective agreement/settlement arrived at between C.B.A. and the management or given by the employer under his own policy or decision. It is in this spirit that settlements etc. arrived at between employer and C.B.A. according to section 59(1)(d) will be binding on all workmen who were employed in the Establishment or industry to which an industrial dispute relates on the date on which the dispute first arose or who are employed therein after that date. As consequence thereof it is forbidden for an employer to enter into a settlement with a trade union which is not C.B.A., otherwise it shall be deemed to be an unfair labour practice on the part of the employer. If the situation of the instant case is judged in this dimension, it would appear that the respondent 3 itself has made an attempt to side track the C.B.A. by raising the said demand obviously for the reason to influence workers and win their sympathy. On the other hand if it is construed that it was done at the behest of the management, then the intention of the latter would cast negative aspersion. The sitting C.B.A. therefore rightly took notice of the matter and immediately wrote to the Management of this unusual phenomenon or practice. But if the matter is let to end with no benefit to workers of the respondent establishment just for the reason that the matter has not been raised genuinely by the representative body of workers, the matter will operate clearly detrimental to workers' overall interest and they will be deprived of a beneficial offer. In this view of the matter the viable solution is required to be worked out for the benefit of workers at the establishments.

11. Before that I would also like to dispose of the points raised by the learned counsel for respondent 3, I am not inclined to agree with his contention that the petitioner-Union itself is guilty of discrimination and therefore is not entitled to any equitable relief based on the principle of law. I do not find any force in it. In this case C.B.A. has reminded of its legitimate rights and functions under the law by filing this petition. I do not find any element of discrimination on the part of C.B.A. in filing this petition. Therefore, the arguments of the learned counsel in this regard are not tenable at all. Also, his contention that the petition is required to be dealt with under section 33 is not relevant as it has been filed under section 49(4)(e) of I.R.O., 2002. For reasons given above this Bench has assumed the jurisdiction. The contention of the learned counsel that C.B.A. under the law is bound to negotiate or enter into settlement or an agreement for the enforcement of any right guaranteed or secured to workers is without force of law as negotiation is not viable for the enforcement of rights in view of the clear distinction made in matters of rights and matters of interests in the definition of "industrial dispute" given in section 2(xvi) of I.R.O., 2002. C.B.A.'s role to undertake social dialogue is confined only to matters of interests. The enforcement of any rights is the function of section 46 of I.R.O., 2002 captioned as "redress of individual grievance" and so does not form subject-matter of negotiation which function is undertaken usually under sections 25-29 of the said Ordinance and not under section 46 thereof. I, therefore, do not concede to the contentions of the learned counsel in this regard.

12. For the purpose to let the issue in hand be resolved amicably and expeditiously I in exercise of the power under Regulation 34 of NIRC (Procedure and Functions) Regulations, 1973 cut short the procedure by not going into examination and cross-examination of witnesses. In order to so dispose of this petition rely only on the documents contained in the case file. I would direct that the demand of the respondent 3 be treated as a proposal from a group of workers in the Establishment. In order to disburse the amount earmarked for the said purpose the Management should take up he matter with the sitting C.B.A. to discuss and finalize modalities for disbursement of the amount earmarked for motorcycle and house building advances fairly amongst workers on merit, without allowing an element of doubt about any discrimination leading to mala fides. Alternately, this matter can be sorted out at the level of Joint Works Counsel if exists in the Establishment of C.D.A., formed under section 24 of the said Ordinance. The Management itself has the prerogative to initiate such welfare steps for workers. It may do so in future for any other project. If under the present circumstance the management avoids the involvement of the sitting C.B.A. in the disbursement of the amount in question it will not help to create a congenial and harmonious climate for a viable resolution of the matter. The management is therefore directed to settle the issue amicably with sitting C.B.A. in the interest of industrial peace and promotion of trust relationship, essential for good industrial relations. Since the matters of interest between employers and workers are of highly sensitive nature, sufficient care must be taken to handle the same but in consultation with C.B.A. in power. For reasons so given and parameters so laid down, this petition is allowed. H.B.T./27/NIRC????????????????????????????????????????????????????????????????????????????????? Petition allowed.