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Petitioner: GENERAL TYRE AND RUBBER WORKERS' UNION, CBA, through General Secretary VS Respondent: THE GENERAL TYRE AND RUBBER COMPANY OF PAKISTAN LTDHonorable Justice Ghulam Nauman ShaikhShafique Qureshi,Mehmood Abdul Ghani
2008 P L C 96
2008 P L C 96
[National Industrial Relations Commission]
Before Ghulam Nauman Shaikh, Member
GENERAL TYRE AND RUBBER WORKERS' UNION, CBA, through General Secretary
Versus
THE GENERAL TYRE AND RUBBER COMPANY OF PAKISTAN LTD, through Managing Director/Occupier
Case No.4A(47)/2007-K=24(64)/2007-K, decided on 2nd August, 2007.
(a) Industrial Relations Ordinance (XCI of 2002)---
----S. 2(x)---Workers employed by the contractor---Contractor or an establishment of a contractor had also been included as an employer in clause (x) of S.2 of Industrial Relations Ordinance, 2002---Right to employ labour by contractor was recognized, being a separate and independent entity and Management would not be responsible for such labour---Workers employed by the contractor were not under the contract of service of the employer and the contractor was at liberty to select any set of workers for the completion of his own contract---Necessary consequence would be that the workers were the appointees of the contractor and it was his responsibility to take work from them, to pay them their wages accordingly to keep a control on them, to remove them or to deal with them in any manner---Such workers would be answerable to the contractor alone and not to the employer for whom the contractor was carrying on work---Such workers, having no contract of service with the employer, could not be deemed to be his "employees".
1984 PLC 1359; 1993 PLC 937; PLJ 2006 Lah. 1053; Delhi Cloth and General Mills Co. Ltd. v. Rameshwar Dayal and another 1961 PLC 555; 1992 SCMR 36; Sindh Alkalis Ltd., Karachi v. Worker Union and another PLD 1979 Kar. 473; 2002 PLC 274; Malik Nazar Hussain v. National Bank of Pakistan and another 2004 SCMR 28; Muhammad Aqil v. Chairman, Sindh Labour Appellate Tribunal and another 1974 PLC 194; 1961 PLC 1033; Saeed Ahmad Qazi and another v. National Industrial Relations Commission and another 1984 PLC 397; Allied Bank of Pakistan v. Chairman National Industrial Relations Commission and 4 others 1984 PLC 1342; National Bank of Pakistan v. Senior Member, NIRC and another 1986 PLC 985; Dr. Aijaz Hussain Qureshi v. National Industrial Relations Commission and 2 others PLD 1976 Lah. 611; Mian Munir Ahmed v. The State 1985 SCMR 257; Fauji Sugar Mills through General Manager v. Mehmood Ahmed 2006 PLC. 630; Abdullah Butt v. S.H. Muzaffar Zaidi 1977 PLC 212; 1991 PLC 876; 2004 PLC 209; 2005 PLC 88 and Farid Ahmed v. Pakistan Burmah shell Limited 1987 SCMR 1463 ref.
(b) Industrial Relations Ordinance (XCI of 2002)---
----Ss. 2(x)(xxx) & 49(4)(e)---Unfair labour practice by the employer---Relationship of employer and workman---Relationship of employment with the disputed workers having been denied by employer, onus to prove and to establish employment relationship of disputed workers with the employer-Establishment was on the employees union---No document relating to employment had been produced to establish their employment relationship with the employer---Even none of said workers had filed his affidavit to substantiate said claim of the employees union---Neither it was mentioned in the petition nor in affidavit-in-rejoinder that when employer did not issue appointment letters, service identity cards, gate passes, social security institution cards and employees old age benefit cards to the said workers, how the union could base its petition on general and vague allegations without producing documents to establish employment relationship of said workers.
Alamgir and 2 others v. Messrs Dada Bhoy Silk Mills Ltd. and others 1997 PLC 13 ref.
(c) Industrial Relations Ordinance (XCI of 2002)---
---Ss. 2(x) (xxx), 49(4)(e) & 63---National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln.32(2)(c)---Unfair labour practice on part of employer---Relationship of employers and employees---Interim relief, grant of---Interim prohibitory relief of general nature was sought by the union to restrain the employer from transferring, removing, retrenching, dismissing workers from employment, which could cause great hardship and inconvenience to employer---Union neither had a prima facie case nor balance of convenience lay in favour of interim relief---Even otherwise grant of interim relief against any action mentioned in S.63(1)(d) of Industrial Relations Ordinance, 2002 was subject to pendency of an Industrial dispute, which neither had been raised, in prescribed manner nor was pending---Grant of interim relief, in circumstances was barred under proviso to clause (e) of subsection (4) of S.49 of Industrial Relations Ordinance, 2002---Union having failed to prove relationship of employer and employees, grant of interim relief would amount to induct the workers in employment of employer without the union and the said workers to have established their employment relationship with employer, which would not be legal approach---Until persons establish their employment relationship with the employer, they could not become members of employees union---Act of unfair labour practice, if any, already committed, could not be prevented under Regln.32(2)(c) of National Industrial Relations Commission (Procedure and Functions) Regulations, 1973 as said provision could be invoked when an unfair labour practice was likely to be committed---Employees Union had not been able to make out a prima facie case and balance of convenience also did not lie in favour of union to grant interim relief---Application for grant of interim relief was dismissed in circumstances.
2007 PLC 133; Messrs Ramzan Ali & Co. Cotton Ginning and Pressing Factory Mirpurkhas v. General Secretary Employees Union and another 1996 PLC 311 and Allied Bank of Pakistan Ltd. and 3 others v. Chairman National Industrial Relations Commission and 4 others 1984 PLC 1342 ref.
(d) Industrial Relations Ordinance (XCI of 2002)---
----Ss. 49(4)(e) & 63---Unfair labour practice---To give charge-sheet and initiate disciplinary proceedings against a delinquent worker was a statutory right of the employer, which could not be curbed or termed as unfair labour practice---National Industrial Relations Commission had no general jurisdiction, but was vested with jurisdiction, if the worker had been made victim of unfair labour practice in accordance with the provisions of S.63 of Industrial Relations Ordinance, 2002, which, in the facts and circumstances of the case, could be determined after evidence of the parties was recorded.
PLD 1988 SC 53; 2004 SCMR 28; 2004 PLC 209 and 2005 PLC 88 ref.
Shafique Qureshi for Petitioner.
Mehmood Abdul Ghani for Respondents.
ORDER
GHULAM NAUMAN SHAIKH (MEMBER).--- This is a petition under sections 49(4)(e), 63 of I.R.O., 2002 along with an application under Regulation 32(2)(c) of NIRC (P&F) Regulation, 1973 filed by the petitioner union against the respondents.
1. The facts of the case as stated in the petition are that the petitioner is registered trade union and CBA in the respondents establishment, where 1500 workmen are employed permanently on permanent jobs in connection with manufacturing of tyres as per the list attached and marked as Annexure "A/3" and Annexure "A/4". The entire factory, plant, land, machinery. Electric and Gas Installation are owned, managed and controlled by the management of the respondent. It is alleged that the workers mentioned in the list attached and marked as Annexure "A/5" have been locked out illegally on or after 14-7-2007. The workers as per Annexure "A/4" are being locked out every day, since 14th day of July 2006. It is alleged that the respondents did not issue appointment letters to the workers as per Annexure "A/4" at the time of appointment, though took signatures on written/printed/blank papers, vouchers, etc. and continued taking signatures during the course of employment. It is submitted that the petitioner union earlier had served notice of demand, conciliation notice, strike notice and thereafter resorted to strike, which resulted in settlement for workers as per Annexures "A/3" and "A/4". Settlement is attached and marked as Annexures "A/6" and "A/7". The petitioner union had also filed a case under section 49(4)(e) read with section 63 along with an application under Regulation 32(2)(c) of NIRC (P&F) Regulations, 1973, in which ad interim order was passed attached and marked as Annexure "A/8", which case was latter on withdrawn in view of the settlement. It is submitted that workers as per Annexure "A/3" were members of the petitioner union and their monthly subscription is being deducted out of their monthly wages. The petitioner union enrolled the workers as per Annexure "A/4" as members of the union and wrote a letter to the respondent company to deduct union monthly subscription as per demand statement/authority letter given by 695 workers, out of list Annexure "A/4", the letter, dated 24-8-2006 is attached and marked as Annexure "A/9", but the respondent did not deduct, as such the petitioner union continued collecting unions subscription directly in person through the unions nominated persons and are continuing the same till this day. The respondents never raised any objection to the unions subscription collection in person on the day of disbursement of wages. It is alleged that the respondents management committed acts of unfair labour practice and also issued charge sheets to two Assistant Finance Secretaries of the union. The petitioner union filed a case under sections 33, 21 and 63 of I.R.O., 2002 before the Honourable IVth Sindh Labour Court Karachi on 13th day of July, 2007, copy attached and marked as Annexure "A/10", which is pending. The petitioner union has also issued reminder on 10-7-2007 for collection/deduction of unions monthly subscription from monthly wages, copy attached and marked as Annexure "A/11". It is alleged that respondent started harassing, coercing, pressurizing the office-bearers/members of the union due to filing the Industrial dispute before the Honourable IVth Sindh Labour Court Karachi. The respondents orally removed/lockout workers as per list Annexure "A/5 on 14th, 15th, 16th July-2007 and are threatening to lockout workers, union office-bearers due to pendency of the said dispute. It is alleged that respondents management always take interest in unions elections and referendum and they make sure that the persons of their choice are elected as office-bearers of the petitioner union. The unions elections are ahead, therefore, the respondents management started making queries from the members of the union, as to whom they will vote against the panel of management. The pressure is particularly on members as per Annexure "A/4". The workers, who do not answer to support management panel, stand locked out without any reason and also without written termination letter. The lockout resorted by the management as per Annexure "A/5" is continuing and are likely further lockout of workers. The petitioners' union General Secretary enquired from the IR and Factory Manager, the reason of lockout/removal of workers as per oral orders, but he could not give satisfactory answer, which is clear indication of lockout of the workers due to filing of case before the Honourable IVth Labour Court Karachi and also to discourage members of union from continuing membership and payment of unions monthly subscription. It is alleged that on 7-7-2007 at about 10-30 a.m. the respondent No.2 called the General Secretary for a meeting, who along with other office-bearers went to see him. The respondent No.2 insisted in the meeting to cancel the membership of the workers as per Annexure "A/4" and also stop collection of unions monthly subscription and threatened to remove members/office-bearers of the union, if the union continued with their membership and did not stop the collection of unions subscription. He also argued that the union can only represent the workers, who cast their votes in their favour in the last referendum. The management of the respondent also pressurized the members of the union to give up the unions' membership. It is alleged that again on 16-7-2007, 17-7-2007 and 18-7-2007 the union members are being asked to withdraw the case under sections 33, 21 and 63 of I.R.O., 2002, but the majority members did not agree. Ultimately the respondent No.2 and other management persons pressurized to change the General Secretary of the petitioner union, else the management shall take serious action against the members and concerned office-bearers of the union. The interference in unions' affairs in continuing. It is prayed to deal with the acts of unfair labour practice on the part of the respondents and to restrain the respondents from transferring, terminating, dismissing, removing and lockout of the workers as per Annexures "A/3" and "A/4", to hold the lockout of workers as per Annexure A/5, illegal, mala fide and against natural justice, amounts to an act of unfair labour practice and to restrain the respondents from interfering in the affairs of the petitioner union in any manner.
2. The respondent filed reply statement with preliminary legal objections and counter affidavit. Legal objections raised are that the petitioner union is registered with the Provincial Registrar of Trade Unions, Government of Sindh, as such it has no locus standi to invoke the jurisdiction of NIRC in terms of decision of the Division Bench of the Karachi High Court reported in 2002 PLC 274, therefore, the petition is not maintainable. The petition is also not maintainable as on the same facts and grounds the petitioner union has earlier in point of time on 13-7-2007 filed case No.2 of 2007 under section 33 of I.R.O., 2002 in the IVth Sindh Labour Court Karachi, where the issue is sub judice. This is to avoid multiplicity of, the proceedings and conflict of decisions as both the judicial forums have separate appellate forums. The proceedings in terms of section 49(4)(e) of I.R.O., 2002 are to be treated as if in terms of section 33 of I.R.O., 2002. These proceedings provide for enforcement of pre-determined and pre-existing rights and not for adjudication and for determination of the rights. The question as to whether the persons listed by the petitioner union in Annexures "A/3", "A/4" and "A/5" are employees of the respondents establishment or that of independent contractor Messrs M.M. Associates are disputed questions of facts, which require adjudication and determination and cannot be resolved in the present proceedings. The union and/or more specifically the persons listed in Annexures "A/3", "A/4" and "A/5" have first to approach the competent Court of law and get this established that they are employees of General. Tyre and Rubber Company of Pakistan Ltd. Only then they become Members of the petitioner union. In absence of any findings of a Court of law declaring the employees listed in Annexures "A/3", "A/4" and "A/5' as employees of General Tyre and Rubber Company of Pakistan Ltd. it is not open for the persons so listed in the Annexures to get themselves become members of the petitioner union, nor for that matter the petitioner union is competent to espouse their cause in the Commission. The petitioner union is illegally constituted body, as it is constituted of employees not engaged in the respondents establishment as provided in the registered constitution of the union and also includes persons employed by the independent contractor, Messrs M.M. Associates. The petition is further not maintainable in law because none of the persons listed in Annexures "A/3"., "A/4" and "A/5" have filed any documents along with the petition to establish the bond of relationship of employer and the employees between them and the respondents establishment. The prayer made by the petitioner union for restraining the respondents to transfer, terminate, dismiss or remove and/or affect lockout in respect of persons listed in Annexures "A/3", "A/4" and "A/5" is a vague and general prayer. The prayer is direct infringement of the employer's right mentioned under section 83(2) and under Schedule II of I.R.O., 2002 to conduct the business, to manage, control and use the property of his enterprise and conduct his business in any manner considered by him and right to use available resources including human resources efficiently and effectively in the best interest of enterprise. Prayer made by the petitioner union is contrary to the provisions of law and, as such, of no legal effect.' The petition under section 49(4)(e) of the I.R.O., 2002 is also not maintainable as no Industrial Dispute of any nature has been raised, nor the same is pending in the Labour Court or before the conciliation officer. No failure of conciliation has taken place. Prayer of interim relief is outside the ambit of law and is barred by provisions of section 49(4)(e) of I.R.O., 2002. On merits of the case it is submitted that claim of the petitioner that the respondent have employed 1500 workmen is not factually correct. It is denied that the respondent No.2 is notified Factory Manager. It is submitted that Syed Najam Ahmed Senior Personnel Executive is presently notified Manager under Factories Act, 1934. It is denied that supervisors and Managers of the respondents control and administer the entire process of tyre manufacturing. It is submitted that persons mentioned in Annexures "A/3", "A/4" and "A/5" are not employed by the respondent No.1 establishment nor they are working under the control and supervision of respondents nor are paid by the respondents. No appointment letters or other document of any nature has been produced .by the petitioner union to establish any bond of relationship of employer and employees between the respondent No.1 and these persons listed in Annexures "A/3", "A/4" and "A/5". It is alleged that the petitioner union is making contradictory pleas. On one hand it claims that the persons listed in Annexures "A/3", "A/4" and "A/5' are employees of the respondent No.1, whereas the union has filed Annexure "A/7" at page 63, which is document, where the same General Secretary of the union has recognized the existence of contractors Messrs M.M Associates. This document falsifies the claim of the -petitioner union that the persons listed in Annexures "A/3', "A/4" and "A/5" are the employees of the respondent No.1 establishment. It is denied that the respondents have locked out workers listed in Annexure "A/5" since 14-7-2006. The instant petition to have been filed after lapse of more than 12 months of alleged lockout showing that claim is false and malicious and is belated and time-barred. None of the listed workers have served individual notice of grievance nor filed the petition in the Commission. For alleged lockout the remedy available is in terms of section 39 of I.R.O., 2002 before the Labour Court and not before the National Industrial Relations Commission. With regard to the claim of the petitioner union that the management of the respondent No.1 .have not issued letters of appointment to the workers listed in Annexures "A/3", "A/4" and "A/5" at the time of appointment overlooks the fact that at no stage in the past these individual persons had never alleged, nor filed. any case in any Court to the effect that they were employed by respondent No.1 and were working without any letter of appointment. This is an afterthought plea that the respondent No.1 took signatures/thumb impressions on printed or blank papers etc. and continued taking signatures during the course of employment, which is vehemently denied. It is submitted that memorandum of settlement was concluded between the petitioner union and respondents management on 11-9-2006 filed by the petitioner union as Annexure "A/6", whereas now the petitioner union is making allegations that the persons mentioned in Annexures "A/4" and "A/5" were illegally locked out on 14-7-2006. There is no mention of lockout nor reference to these persons listed in Annexures "A/4 and "A/5" in the settlement, dated 11-9-2006. The petitioner union in the memorandum of settlement, dated 11-9-2006 had given an undertaking not to raise or pursue directly or indirectly during the operative period of the settlement any demand or dispute involving financial commitment on the part of the company and to raise any further financial or non-financial demand during the subsistence of the settlement. It is denied that M.M Associates are employees of the respondent company and are not an independent contractor. With regard to earlier petition bearing Case No.4A(132) of 2006-L, it is submitted that the petitioner union has itself admitted and claimed that only 800 workers are working in the respondent No.1 establishment. It is alleged that the earlier petition was instituted with mala fide intention by the union only to coerce and pressurize the management for the purpose of acceptance of their demands, subsequently settled by the memorandum of settlement with the union. The proceedings were thereafter withdrawn by the union. It is submitted that in the list Annexure "A/3" filed by the same union in Case No.4A/(132) of 2006-L, the names of the persons now listed in Annexures "A/3" to "A/5" in the present petition were not mentioned nor claimed to be the members of the union, which further goes to show that present lists, Annexures "A/3" to "A/5" are false, fabricated and prepared with mala fide intention. The claim of the petitioner union that they have unearthed the number of persons listed in Annexure "A/4", while the workers listed in Annexure "A/3" were already members and the monthly subscription is deducted from their monthly wages is vehemently denied. With regard to Annexure "A/9" attached by the petitioner union for enrollment of 695 persons as members of the union under authority letter which has been attached, it is submitted that it is false and fabricated document. Regarding effecting check off of the persons listed in Annexures "A/3", "A/4" and "A/5" it is submitted that they were not employed by the respondents nor wages were paid by the respondents, therefore the management is not under any legal obligation to effect check off of any payment, as no payment/wages were made by the respondents management to these persons listed in Annexures "A/3", "A/4" and "A/5". It is submitted that this plea has also been taken up by the same union in their application No.02/2007 under section 33 of I.R.O., 2002 filed earlier in the IVth Sindh Labour Court at Karachi, where the matter is sub judice. The present subsequent petition is duplication of earlier pending proceedings. Allegation of committing act of unfair labour practice by issuing charge-sheets is denied. It is submitted that the charge-sheets were issued to Israr Ahmed Khan and Muhammad Boots. After charge-sheets, notices of enquiry were issued. After that enquires were, conducted and these two persons were found guilty, they were dismissed vide dismissal orders Annexures "R/2" and "R/3" and dismissal orders were sent to these persons through courier service vide Annexures "R/6" and "R/7". Allegation of the petitioner union that the respondents are harassing, coercing or pressurizing the members and office-bearers of the petitioner union due to filing of Industrial Dispute in IVth Sindh Labour Court is denied. It is submitted that the settlement has been signed on 11-9-2006 filed as Annexure "A/6". Thereafter, no Industrial dispute is pending. It is vehemently denied that the respondent management takes interest in union elections and referendum and makes sure that persons of their choice are elected as office-bearers of the union. It is submitted that the management is not aware as to when the next union elections are due. It is denied that the management is making queries from the members of the union as to whom they will vote. It is submitted that there is no panel of the management. Allegation of the petitioner union that pressure is exerted on the persons listed in Annexure "A/4" is denied. It is denied that the lockout of any person listed in Annexure "A/5" has been effected, as they being not employees of the respondents. It is denied that members of the union were pressurized to give up the union's membership. It is submitted that at no stage the General Secretary of the petitioner union raised any industrial dispute and no any industrial dispute is pending before any Court at Karachi. Only the case that has been filed by the Union bearing No.2 of 2007, in the IVth Sindh Labour Court Karachi in terms of section 33 of I.R.O., 2002, which has been filed only two days before the filing of the present proceedings in this Honourable Commission, is for enforcement of right and not for adjudication or for determination of industrial dispute. Allegation of the petitioner union about the alleged meeting on 7-7-2007 at 10-30 a.m. wherein respondent No.2 Shahid Ghazanfar called the General Secretary, is denied. It is…
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