2006 PLP 533 (PLC)

ALI NAWAZ A. CHANNA (MEMBER).

The petitioners who are 27 in number have filed this petition under section 22-A(8)(g) of I. R. O. and along with At have filed an application under Regulations 32(2)(2) of N.I.R.C. (P&F) Regulations, 1973 alleging therein that they are the employees of Messrs Hotel Al-Mashriq and Qabail Restaurant. They have further alleged that they had formed a trade union by name "Al-Mashriq and Qabail Restaurant Employees' Union" and that they had applied for registration of the said union to the Registrar of Trade Unions vide their application dated 29-1-2002. According to them Manzoor Hussain Khan was nominated General Secretary of their union and he had applied for registration. The petitioners allege that after formation of trade union and after their application for registration of trade union, the management or respondents became hostile against them and threatened them to withdraw their application for registration of trade union otherwise they will be dismissed or terminated from service. Fearing their imminent dismissal or termination the petitioners approached this Court. This Court while admitting the said petition issued stay order against the respondents restraining them from dismissing or terminating, the petitioners on account of formation of their trade union.

2. After admission, the notice of this petition was sent to the respondents which was received by one Liaquat who incidentally happens to be petitioner No.3. He did not bring the fact of receipt of notice to the knowledge of respondents hence due to service of notice the respondents were declared ex parte and the petitioners were directed to furnish ex parte proof and the petitioners filed affidavit of Muhammad Rashid in ex parte proof. Before the matter could be disposed of on ex parte proof the respondents appeared and filed an application for setting aside ex parte order on the ground that the notice was not properly served upon the respondents as it was received by petitioner Liaquat who was interested in decision against the respondents and he did not bring this fact, of receipt of notice by him, to the knowledge of any of the officer of management of respondents.

3. Notice of' this application for setting aside ex parte order was given to the petitioners but in the meanwhile the learned Labour Representative of' the petitioners withdrew his authority given to him by the petitioners and the petitioners also started remaining absent, hence the application for setting aside ex parte order was disposed of and the ex parte order was set aside vide order dated 3-9-2002. After setting aside ex parte under the respondents were directed to file written comments who filed written comments along with various documents.

4. After the filing of the comments since the petitioners were not appearing and they have not engaged any Advocate and their Labour Representative also withdrew his authority, the case could have been disposed of for non-prosecution but looking to the peculiar circumstances of the case learned Advocate for the respondents Ch. Latif Saghar insisted that the case may be decided on merits. He stated that the petitioners have played fraud upon this Court and have misrepresented the facts hence those need clarification.

5. In the written comments the respondents stated that their's is an establishment by name "Hotel Al-Mashriq" and it has nothing to do with Qabail Restaurant. They have stated that Qabail Restaurant is separate entity. In this connection they have produced registration certificate issued by Department of Tourist Services which is dated 31-10-1982. In this certificate only the name of Hotel Al-Mashriq is mentioned while Qabail Restaurant is not mentioned. This certificate is being renewed from time to time and the last renewed certificate pertains to the period from 1-7-2001 to 30-6-2003. They further stated that the petitioners are not their employees. They stated that they might be the employees of Qabail Restaurant. They further stated that they have nothing to do with the trade union of the petitioner or the registration of their trade union. They further pointed out that so called General Secretary, of so called union, namely Manzoor Hussain Khan had misrepresented the facts to the Social Security Institution and EOBI by putting his signature as the employer and obtained social security cards from those departments in favour of some employees. They stated that this Manzoor Hussain had forged that seal of the Hotel and affixed it under his signature as employer and obtained those certificates and cards. They further' stated that when this fact transpired to the Social Security they cancelled the cards issued in favour of some employees. Such letter of Sindh Employees Social Security Institution has been produced on record. Further the Manager of Hotel Al-Mashriq also wrote a letter to the S.H.O. about the fraud and forgery of Manzoor Hussain and requested for action, which application is still pending with S.H.O. for action.

6. They have further staled that since the petitioners are not the employees of Hotel Al-Mashriq, hence there is no relationship of employer and employees between the respondents and the petitioners hence this petition is false; frivolous, concocted and fabricated one. They have further stated that neither the respondents have committed any act of unfair practice nor any incident whatsoever of unfair labour practice has been alleged by the petitioners.

7. I have gone through the petition as well as written comments very minutely. I have also heard the learned Advocate for the respondents. Neither the petitioners nor their any Representative or Advocate were present hence they could not be heard.

8. First of all there is no proof whatsoever submitted by the petitioners that they are the employees of Hotel Al-Mashriq. They have neither produced their appointment orders nor they have produced any pay-role of the Hotel Al-Mashriq nor they have produced any other document to show that they are the employees of Hotel Al-Mashriq. There is therefore, serious doubt whether the petitioners are the employees or Hotel Al-Mashriq. This fact is proved from the circumstances that when the respondents brought to the notice of this Court that the petitioners are not their employees hence they started remaining absent so much so that their Labour Representative also withdrew their authority. The petitioners have therefore, no nexus with the establishment of Hotel Al-Mashriq and therefore, there is no relationship of employer and employee between the Hotel Al-Mashriq and petitioners. Accordingly the petitioners have no right to invoke the jurisdiction of this Court and their petition is false, frivolous and not maintainable.

9. The petitioners have alleged that they are employees of Hotel Al-Mashriq and Qabail Restaurant but the respondents have produced many documents that Qabail Restaurant is a separate entity and it has nothing to do with Hotel Al-Mashriq. The respondents have produced certificate which was renewed from time to time which shows that Hotel Al-Mashriq has been registered separately. The petitioners have not produced any document to show that Hotel Al-Mashriq and Qabail Restaurant is one and the same establishment. Accordingly the petitioners have no locus standi to rile the case against the two establishments who are separate entities. On this account also the petition is false, frivolous and not maintainable.

10. The respondents in their affidavit attached with the application for setting aside ex parte order have stated that some of the petitioners namely Saadat Babar Khatak, Shona Khan, Shahid Khan, Abdul Lateef, Inayat Masih and Haseen were their employees as full time but Abdul Lateef, Inayat Masih and Haseen left their employment while remaining three persons namely Saadat Babar Khan Khatak, Shona Khan and Shahid Khan are still in their employment, but they have made statements in writing that they have neither formed any trade union nor they know any-thing, about the formation of union, nor they have filed any petition before this Court. For petitioners Yaseen and Zaffar it is stated that they are part time employees as electrician and plumber and they are called whenever their services are required in Hotel. For petitioner, Fida Hussain and Abdul Rashid it is stated that they are washer-men, they directly charged the customers of washing charges and they are not the employees of Hotel. In such circumstances it was argued that the above ten persons can neither be the members of any trade union nor can they file this petition. The contention is not controverted by any evidence. No counter-affidavit has been filed. As such these ten persons have falsely been made petitioners in this case. It appears that the case was filed without their consent and knowledge. This further shows that the petitioners in order to achieve their nefarious designs have signed on behalf of those persons in order to pressurize, harass and balckmail the respondents and filed the petition before this Court. Had the petitioners been true in their cause they should have pursued their case and brought it to its logical end. Leaving the case in the middle shows that the petitioners had come with unclean hands and wanted the settlement with the respondents by way of blackmailing but when the respondents did not come into their blackmail they sought refuge in remaining absent.

11. The glaring fraud which was committed by so-called General Secretary Manzoor Hussain Khan has been brought to my knowledge by the learned Advocate for the respondents. He particularly showed me the form of EOBI on which there is signature of Manzoor Hussain as employer and seal of Hotel Al-Mashriq and Qabail Restaurant has been affixed on it. This Manzoor Hussain has been shown to be the General Secretary of the trade union in Schedule-I submitted to the Registrar of Trade Unions and in the form of EOBI he has signed it as employer. By this way said Manzoor Hussain Khan has committed fraud upon the establishment of the respondents as well as the EOBI and Social Security Institution. Ch. Latif Saghar learned Advocate for the respondents has also produced copy of the letter dated 13-6-2002 which was written by the Manager of Hotel to the Director EOBI in which it was brought to their knowledge that Manzoor Hussain has practised fraud upon them by using their signatures as employer.

12. This is the way in which this group of persons which include Mr. Abdul Zubair and Manzoor Hussain Khan are acting and black mailing the various institutions but it is very strange that they are still at large without any action being taken against them by any of the department. They are committing, fraud and they are preparing fraudulent documents in order to blackmail the establishments and after knocking out money from them, then to withdraw the cases this is now the time when the Labour Department should rise up to take up action against these persons in accordance with law. In view of the facts and circumstances enumerated above I have come to a irresistible conclusion that the petitioners are not the employees of Hotel Al-Mashriq and that they have filed a false case against them to harass and black-mail them. Accordingly this petition being false, frivolous and not maintainable is dismissed. Hotel Al-Mashriq will be at liberty to sue the petitioners and their representatives for damages if they so desire. H.B.T./102/N.I.R.C. Petition dismissed.