2012 PLP 9 (PLC)

BASHIR AHMED MEMON (MEMBER).

The present petition has been filed by the petitioners under section 22(8)(g) of the Industrial Relations Act, 2008 claiming in the petition that petitioners Nos.1 to 4 are employed and engaged on permanent posts as contractual worker by respondent No.1 establishment whereas petitioner No.5 is KESC Employees Union (KESUTY) and petitioner No.6 namely KESC Peoples Workers Union, which was joined as party later on. The brief facts as stated in the petition are that petitioners Nos.1 to 4 were appointed by the respondent No.1 establishment in different capacities in the years 2002, 2003 and 2004 and since then they are working with respondent establishment on permanent job but they are not being treated as permanent workmen though they have served for about 10 years with respondent-management but they are still treated as contractual employees. The petitioners have produced their appointment letters and copies of their NICs. Petitioner No.5 claims to be an industry-wise trade union registered with NIRC, likewise petitioner No.6, which has been joined on application filed under Order I, Rule 10, C.P.C. It has also been claimed by petitioner No.6 union that main purpose of formation of this trade union was to protect the interest of the general workers of KESC. The petitioners Nos.1 to 4 have stated that during the process of registration of their trade union (petitioner No.5) they were contractual workers and were being denied their right of vote and the petitioners were allowed by the learned RITU/Chairman, NIRC to caste their vote in forth coming referendum and respondent No.1 filed an appeal before the Full Bench which was dismissed. Respondent No.1 again filed constitutional petition before honourable High Court of Sindh and the same was again dismissed in favour of petitioners. However the petitioner No.5 union which was registered on 11-8-2009 but this union was not included in the penal of contested trade unions for the reason that the time was short and the process was already delayed and all the formalities for holding the referendum were complete. It is further stated that petitioner No.1 and other associates filed a Constitutional Petition before Honourable High Court of Sindh with prayer that respondent establishment may be directed to issue letter of permanent appointment to the petitioners and the said petition was disposed of by the Honourable High Court with an observation that respondent establishment had made an agreement with CBA union (respondent No.2) regarding contractual workers. It has been stated that after the petitioners were allowed to caste their vote the respondents started committing unfair labour practice and they called the petitioners Nos.1 to 4 and other employees and were asked to submit their resignation from the previous services for getting fresh regular appointment with effect from 1-12-2009 and this way the employees were under heavy pressure of the respondents as the management and CBA entered into an illegal and void agreement with mala fide intention and the petitioners have produced photocopy showing resignation and newly appointment letters as Annexs. J, K, L and M respectively. It has been stated that petitioner No.1 in his resignation has stated that he is submitting his resignation under protest. It has been stated that it was clear violation of law and constitution as it was discrimination against the contractual workers who were discriminated as their previous service was excluded by virtue of an agreement signed by the management and CBA, which was an act of unfair labour practice. It has been stated that since the agreement was void as such the office-bearers of petitioner No.5 union including, Chairman, President and General Secretary have not yet resigned despite heavy pressure from the respondents and they were apprehending that respondents will take serious action against said office-bearers therefore the petitioners have prayed that: (a) Declare that acts and steps of the respondents are as act of unfair labour practice. (b) Declare that the petitioners are permanent workers of the establishment from the date of their appointment. (c) Declare that the respondent management is duty bound to issue permanent letter from the date of appointment of the petitioners. (d) Declare that no resignation from service is required before issuance of permanent letter and the demand of resignation from previous service is violation of law. (e) To declare that the agreement signed by the respondents management and CBA Union is against the law and agreement is a void agreement.

3. Along with main petition an application under Regulation 32(2)(c) of NIRC(P&F) Regulations, 1973 has been filed by the petitioners for interim stay order and while admitting the petition notice was issued to the respondents.

4. Upon service of notice the respondents filed their comments and counter affidavit denying the allegations made by the petitioners. They have asserted that petitioner No.5 union cannot espouse the cause of individual workers in terms of section 25(8)(g) read with sections 17(e)(f) and 26(3)(b) and 50 of the Industrial Relations (Revival and Amendment) Act, 2010 wherein it is only the CBA which may file the proceedings and that too for enforcement of any right guaranteed and secured to it under any law, settlement or award therefore the petitioner No.5 cannot espouse the cause of individual workers and prerequisite condition for filing the petition is that it can only be filed by the worker/CBA against the employer, whereas petitioners Nos.5 and 6 are admittedly not CBA and the petition on this sole ground is not maintainable and is liable to be dismissed. It has been stated that office-bearers have already filed a case bearing No.4A(63)/2006-K before this Bench of Commission in which stay against dismissal, termination removal etc. of office-bearers was confirmed vide order dated 17-6-2007 and subsequently order 13-1-2010 was also passed by this Bench of Commission copy of which is attached as Annex.R/1 and appeal against said order bearing No.12(07)/2010 is sub judice before Full Bench of this Commission wherein the petitioners were deliberately not appearing and were, repeatedly sending adjournment application/transfer applications which has also been dismissed by the Learned Chairman and present stay application suffers multiplicity of proceedings. It has been stated that the petitioners in their petition at para-4 and order of the Honourable Sindh High Court attached as Annex.I has sought review of orders of the Division Bench of Sindh High Court passed in C.P. No.D-1596 of 2009 through this Bench of Commission. It has been stated that the petitioners wilfully and deliberately have concealed the orders passed by the Division Bench of Honourable Sindh High Court in C.P. No.D-2696 of 2009 on the same issue whereby the petition was disposed of in view of the settlement/agreement executed between respondent No.1 and respondent No.2. It has been stated that the petitioners by filing the present petition have challenged the settlement signed with CBA by giving it a cover of unfair labour practice but the pleadings as well as prayer in the petition do not come within the ambit and scope of unfair labour practice. Even violation of any provision of Standing Orders Ordinance, 1968 is not ipso facto unfair labour practice unless inserted in section 17 of the Industrial Relations (Revival and Amendment) Act, 2010. It has been stated that by way of interim relief the petitioners have sought final relief which cannot be granted and even otherwise the proceedings are corum-non-judice and the petitioners have prayed for enforcement of right guaranteed and security under law which actually have been infringed and without conceding such claim is not justiciable before this Bench of Commission. Only general and vague allegations have been made with mala fide intention and the terminology has been used to justify the petition of unfair labour practice. Neither any unfair labour practice has been committed nor respondents have any intention to commit the same as such the petition is liable to be dismissed.

5. Respondent No.2 has filed its comments and counter affidavit in which the allegations levelled by the petitioners have been vehemently denied and it has been asserted that the NIRC has no jurisdiction to grant relief sought by the petitioners as signing of agreement by the CBA is not an act of unfair labour practice and even otherwise the agreement has already been signed and acted upon and the petitioners Nos.1 to 4 have availed its benefits likewise thousands of other workers who are happy with the said agreement as such the petition is not maintainable and is liable to be dismissed.

6. I have heard the arguments of learned counsel appearing on behalf of their parties at very length.

7. Mr. Muhammad Pervez Khan Tanoli, learned counsel appearing on behalf of the petitioners almost has repeated the same facts and grounds which he has mentioned in the petition and argued that petitioners Nos.l to 4 and other workers are working with respondent No.1 establishment since so many years but they are not being given the status of permanent employee whereas under the provisions of law the worker is to be treated permanent after three months of his service. It has been argued that CBA is in league with respondent No.1 establishment and the CBA is only competent to sign settlement regarding betterment of the workers and the management while taking resignations from the employees has committed discrimination which is an act of unfair labour practice.

8. While arguing Mr. Faisal Mahmood Ghani, learned counsel appearing on behalf of respondent No.1 submitted that his comments and objections may be treated as arguments whereas Ch. M. Ashraf Khan, leaned counsel appearing on behalf of respondent No.2 argued that petitioner No.5 union had gone in C.P. No.D-1596 of 2009 to the Honourable High Court of Sindh and the very same prayer has been made prayed for declaring the contract employees as permanent employees and the said petition was disposed of vide order dated 24-3-2010. Only vague and general allegations have been made in the petition and no specific instance of unfair labour practice has been made. He has also argued that since the agreement has been signed as such this Bench of Commission cannot interfere in the agreement/settlement. It is argued that this Bench of Commission is only competent to interfere when any act of unfair labour practice is under way and is not completed whereas even if it is presumed that any act of unfair labour practice has been committed then also since the act has already been committed as such it cannot be reversed or challenged under the present proceedings.

9. I have given my anxious consideration to the arguments advanced by the learned counsel for the parties and have gone through the entire material placed on record.

10. Admittedly the petition has been filed by four individual workers and two non-CBA unions and the prayer in the petition has been made for declaring them permanent employees of the respondent No.1 to declare the agreement signed by respondent management and CBA as void agreement. Under section 25(8)(g) read with sections 17(e)(f) and 26(3)(b) & 50 of the I.R.A. 2010 it is only the CBA which may file the proceedings and that too for the enforcement of any right guaranteed and secured to the CBA under any law, settlement or award. The petitioners cannot espouse the cause of individual workers and they have no locus standi to challenge the agreement/settlement which has been implemented and acted upon and the benefits thereof have been taken by petitioners also, therefore this Commission cannot interfere in the agreement which has already acted upon even if it is deemed to be an act of unfair labour practice, it cannot be stayed in the present proceedings.

11. The petitioners have failed to point out as to which ingredients of unfair labour practice is attracted and only bald and vague allegations have been made without any substance and instance of unfair labour practice. The Commission has no jurisdiction to entertain all the grievances even though they may not be relatable to unfair labour practice.

12. It is worth to mention here that petitioners have already approached the Honourable High Court of Sindh by filing C.P. No.1596 of 2009 on the point of regularization and their petition was disposed of vide order dated 24-3-2010, as the learned counsel for the parties had agreed that negotiations between the management and the CBA will be completed within a period of one month and admittedly the settlement has been signed by both the parties as such this issue cannot be again raised by the petitioners before this Bench of Commission and if they have any grievance, they may approach to the proper forum.

13. Moreover the office-bearers of petitioner No.5 union have already filed a Case bearing No.4A(63) of 2006-K in which stay against dismissal, termination and removal etc. was confirmed vide order dated 16-6-2007 passed by this Bench of Commission as such the present petition filed by the petitioners on the apprehension of removal from employment is baseless and unfounded as they have already protection to their employment. In view of above discussed facts and circumstances I am of the considered view that the petitioners have failed to make out a case of unfair labour practice. Accordingly not only the stay application under Regulation 32(2)(c) of NIRC(P&F) Regulations, 1973 but main petition also stands dismissed. H.B.T./14/NIRC Petition dismissed.