2006 PLC 404 (PLP)

Laws Cited

Representation

• M.A.K. Azmati for Petitioners.
• Faisal Mahmood Ghani for Respondents.
• 5. At the time of admission, the operation of Notice published in daily newspaper dated 18-4-2003 by which the services of 426 employees were terminated, was suspended but the respondents filed writ petition before the Hon'ble High Court where jurisdiction of this Court was challenged to pass such orders and the Hon'ble High Court by consent of the parties remanded the case to this Court and suspended the stay order of this Court and gave direction to decide the case within 15 days. After remand of the case Mr. Faisal Ghani, the learned advocate for the respondents frankly conceded that legal objections raised by him were mixed questions of facts and law as such he offered that he will not raise preliminary legal objections at this stage but would like to press them after recording of evidence of both the parties. Accordingly both the parties were allowed to lead their evidence.
• 6. Thy petitioners in support of their case filed affidavits-in-?evidence of Abdul Karim Mangwano, Abdul Latif, Qadir Bux, Fateh Muhammad and Hussain Ali. All the witnesses were cross-examined by Mr. Faisal Mahmood Ghani, learned advocate for the respondents. The respondents in support of their case examined Muhammad Haroon, General Manager Administration on general points and Abdul Razzak, Manager Finance on the financial matters. Both these witnesses were cross-examined by Mr. Azmati, the learned advocate for the petitioners.
• 8. I have heard the learned advocate for the petitioners and the learned advocate for the respondents. I have gone through the pleadings of the parties and evidence adduced by the parties.
• 10. Points Nos. I & II:-On these points the learned advocate for the respondents argued that the jurisdiction of this Court is limited to the cases of prevention of occurrence of unfair labour practice but where the unfair labour practice has already been committed then this Court has no jurisdiction. He argued that the jurisdiction of this Court is attracted where there are specific and concrete allegations of unfair labour practice otherwise this Court will lack the jurisdiction in such matters. In this connection he placed his reliance on PLD 1988 SC 53 in which it was held that:. "It is therefore not right to construe the clause in question as conferring a general jurisdiction upon the benches to entertain all kinds of grievance petitions even though they may not be relatable to unfair labour practice." On the principle of this authority he argued that the petitioners have failed to spell out any specific act of unfair labour practice on the part of respondents, hence the petition of the petitioners is devoid of instances of unfair labour practice and as such this Court has no jurisdiction to entertain this petition.
• 11. On the other hand Mr. M.A.K. Azmati, the learned advocate for the petitioners argued that the petitioners have made out a very good case of unfair labour practice on the part of respondents and the instances of unfair labour practice have been spelled out in the petition therefore this Court has jurisdiction to entertain this petition and to declare the acts of the respondents as acts of unfair labour practice. In particular he laid his emphasis on a plea that more than 50% of employees were terminated in violation of S.11-A as such it is an act of unfair labour practice.
• 13. Point No.III: This is most important and crucial point for decision of this case. In this regard the contention of learned Advocate for the petitioners is that the respondents terminated the services of more than 50% employees in violation of S.0.11-A of Standing Orders Ordinance, as such it is an act of unfair labour practice as defined in S.63(1)(I) 'of the I.R.O., 2002. In order to understand the import and application of both the sections it is necessary to reproduce both these sections which are as under:-
• 14. The learned Advocate for the respondents in order to meet with this situation argued that S.63(1)(I) postulates that if whole establishment is closed down without permission of Labour Court then it is unfair labour practice but where more than 50% of the employees are terminated without permission of the Labour Court it is not an act of unfair labour practice.
• 15. I have considered the arguments of learned Advocate for the parties in juxta-position with the above referred sections.
• 16. Mr. M.A.K. Azmati, learned Advocate for the petitioners in support of his contention that termination of more than 50% of employees is an act of unfair labour practice has placed his reliance upon 1983 PLC 74, 1991 PLC 305, NLR 1981 T.D. 245 and 1998 PLC 490 and page 495. I have gone through these authorities. In these authorities it has been held that termination of more than 50% of the employees without permission of the Labour Court is an illegal act but in none of these authorities it has been held that such act is act of unfair labour practice. Incidentally the first three authorities are by the Labour Appellate Tribunals which Tribunals do not deal with the cases of unfair labour practice. These appeals had arisen out of the orders of the Labour Courts which admittedly were not dealing with the cases of unfair labour practice. The act of terminating more than 50% of employees might be an illegal act which may be cognizable by the Labour Court and appeal may be heard by Tribunal but these authorities have never stipulated that such act would amount to act of unfair labour practice. In the last authority 1998 PLC at page 490 the Hon'ble High Court remanded the case to the Labour Court for giving fresh decision for permission to close down the establishment as certain material aspects were not considered by the Labour Court. The other authority reported at page 495 is on some other point and not on S.O.11A. This authority is therefore not applicable being not relevant. Other authority which was relied upon by the learned Advocate for the petitioners on S.11-A was of Full Bench of N.I.R.C. reported NLR 1997 T.D. 507 but this authority is also not of help and assistance to the learned Advocate for the petitioners as in the reported case the whole establishment was wound up by the management and such acts of respondents were held the acts of unfair labour practice. In this case only 50% of the employees have been terminated while the establishment has not been closed, nor there is any application before the Labour Court for permission to close down the establishment but the application before the Labour Court is for permission to terminate the services of 50% of employees. Accordingly this authority is neither applicable to the facts and circumstances nor is of any help and assistance to the learned Advocate for the petitioners. Even otherwise the perusal of S.O.11A would reveal that it deals with two situations, one is that employer cannot terminate the services of more than 50% of employees while in another part it is stipulated that the employer cannot close down the whole of establishment. Both these situations are subject to the permission of concerned Labour Court. Second part of S.11A has been made unfair labour practice as defined in S.63(1)(I) which has been reproduced above. It means that if whole establishment is closed without permission of the Labour Court, it will be an act of unfair labour practice but if more than 50% of the employees are terminated it has not been made act of unfair labour practice under S.63. The Bench of this Commission in case No.4A(281)/2000-K, decided on 16-1-2001 in relation to S.11A has made the following observations which are pertinent and applicable to the facts and circumstances of this case. For ready reference they are reproduced as under:
• 17. Point No.IV. This is very crucial and important point touching the very root of the case. Learned advocate for the respondents argued that Benches of the Commission have jurisdiction to prevent the occurrence of acts of unfair labour practice but where the acts of unfair labour practice have already been committed, the Bench ceases to have jurisdiction. In this connection he referred to Regulation 32 of N.I.R.C. (P&F) Regulations, 1973. It will be advantageous to reproduce Regulation 32 which reads as under:--
• From the above quoted Regulation he argued that first part relates to the acts of unfair labour practice which have already been committed and for that employees may be reinstated in service upon finding the employer guilty of acts of unfair labour practice and not otherwise while the second part relates to the commission of acts of apprehended unfair labour practice. To highlight his arguments the learned advocate for the respondents argued that services of employees were terminated by order dated 16-4-2003 and such notice was also published in daily newspaper "IBRAT" dated 18-4-2003 and that letters were sent to the concerned employees individually through post and through courier service. He argued that this petition was filed on 9-6-2003 i.e. after a period of one month and three weeks as such according to him the unfair labour practice if any was already committed and completed, hence this Court cannot entertain this petition much less grant any relief.
• 18. As against this Mr. M.A.K. Azmati, the learned Advocate for the petitioners could not cite a single authority that terminated employee can be reinstated by N.I.R.C. in exercise of its powers under S.49(4)(e) of I.R.O., 2002. On the other hand the learned advocate for the respondents placed his reliance on many authorities to support his view point that terminated employee cannot be reinstated in service except upon filing complaint and upon finding the employer guilty of unfair labour practice. In this connection he referred to the following authorities.
• 20. Point No.V. On this point the learned advocate for the respondents argued that some of the employees have taken their dues in full and final settlement and then resigned from the post. He gave such number as about 220 workers. He argued that about 87 employees have served grievance notices upon the respondents to show their intention to file grievance petitions before the Labour Court. In such circumstances he argued that individuals had no intention to file the petition before this Court and seek relief from this Court whereas they intend to approach the Labour Court but it is only the union who have filed this petition on behalf of workmen. He argued that CBA Union has no right to espouse the causes of workers whereas it could file a petition for the rights guaranteed and secured to it by or under any law, settlement or Award. He argued that since individual workers have not filed this petition, hence the petition filed by the CBA is not maintainable and it has no right to file the petition on behalf of workers. In this connection he placed his reliance upon 1986 PLC 751, 1984 PLC 1359, PLD 1979 Karachi 473 and 1992 SCMR 36.
• 21. On the other hand the learned advocate for the petitioners argued that it is the vested right of the CBA to canvass the general grievances of its workers and consequently it has a vested right to espouse the causes of workers. In this connection he placed his reliance upon following authorities:
• 22. I have considered the arguments of learned advocates for the parties in juxtaposition with the above-mentioned authorities. The authorities quoted by the learned advocate for the petitioners are not applicable to the facts and circumstances of this case because in none of these authorities it has been clearly and explicitly provided that union can espouse the causes of workers. The first authority quoted above by Mr. Azmati is the authority of Single Member of this bench but it has not been couched in such a way as to hold that the union can espouse the causes of the workers. The authority of Single Member even otherwise is not binding upon this Court. Even otherwise the learned Single Member held that "The case of the petitioner rests not only upon the provisions of the Wage Commission Award but also upon the various settlements reached upon by the parties on various occasions and therefore, such right is not only vested in each and every worker but also in the petitioner as their representative and the intervenor as CBA." These are perfunctory remarks and observations. In this authority the learned Member has held that individual as well as CBA can file the petition. This opinion does not appear to be correct.
• 24. On the other hand, the authorities quoted and relied upon by learned advocate for the respondents Mr. Faisal Mahmood Ghani, have clearly stated that the union cannot espouse the causes of workers whereas it can approach the Court for enforcement of its own right guaranteed or secured to it by or under any law, settlement or award. Prior to promulgation of I.R.O., 2002 there was S.34 in I.R.O., 1969 which is equivalent to S.33 of the Ordinance, 2002. In PLD 1979 Karachi 473 the Karachi Bench held that "Interpretation that right secured to workers can also be enforced by taking recourse to S.34-Held, not permissible as it would result in rendering subsections (2),(3)&(4) of S.25-A nugatory and allow workers to bypass procedure and period of limitation laid down therein--Remedies provided under sections 34 and 25-A independently ensure respectively to benefit of Unions and workers for enforcement of their personal rights." In this authority the rights enforceable by CBA under S.34 are clearly mentioned which are:
• 27. Learned advocate for the petitioners had argued that the respondents have given false reasons while terminating the services of petitioners workers or that the respondents have suffered huge losses. He argued that on the contrary the respondents had achieved huge benefits and profits and therefore the termination orders were not justified.
• 28. On the other hand the learned advocate for the respondents argued that the respondent establishment had suffered heavy losses due to adverse market conditions, due to non supply of raw sugarcane, due to accumulation of stock of sugar, due to import of huge quantity of sugar by the Government and due to decline in the prices of sugar. He argued that these factors compelled to take step of terminating the services of 426 employees.
• 29. Lastly and finally Mr. Azmati, the learned advocate for the petitioners argued that there was a settlement between the CBA Union and the management on 15-4-2003 by which it was decided that the workers would be sent on en bloc holidays at the conclusion of crushing season. He argued that on the next day of this settlement the management terminated services of 426 workers which is an illegal act and mala fide act on the part of respondents. He argued that when there was nothing in the mind of the respondents to terminate the services upto 15-4-2003 then what transpired overnight that the respondents terminated the services of 426 employees. He therefore argued that this act of the respondents may be termed as act of unfair labour practice. I am sorry to say that S.63 of the I.R.O., 2002 does not include this type of allegation as act of unfair labour practice. This Court cannot go beyond the Statutes and laws. If the law does not provide any such act to be unfair labour practice then this Court cannot introduce foreign element to be an act of unfair labour practice, This act on the part of respondents might be an illegal, mala fide or unwanted and unwarranted act but that does not fall within the purview of unfair labour practice, hence it will be different and another forum who will deal with this aspect of the case. Accordingly I hold that this act does not constitute any act of unfair labour practice, hence if cannot be termed as act of unfair labour practice and therefore the petitioners will be at liberty to agitate this act before some other forum where they will file grievance petition.
• Mr. M.A.K. Azmati, learned advocate for the petitioners placed his reliance on many authorities but they are not relatable for the purpose of this case, hence they are not discussed.

Headnotes / Summary

Judgment & Decree