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Petitioner: Messrs AL-NOOR SUGAR MILLS LIMITED through Manager (Legal) VS Respondent: MEHNATKASH LABOUR UNION and 4 others
Court Name: National Industrial Relations Commission Judge(s): Ghulam Nauman Shaikh Title:Messrs AL-NOOR SUGAR MILLS LIMITED through Manager (Legal) vs
MEHNATKASH LABOUR UNION and 4 others Case No.: Case No, 4A(06) of 2008/K=24(08) of 2008-K Date of Judgment:2008-02-26 Reported As: 2008 PLC 205 Result: Application allowed Judgment ORDER ' GHULAM NAUMAN SHAIKH (MEMBER).--- This order shall dispose of application for stay seeking an interim relief supported by affidavit filed by the petitioner in petition for dealing with respondents Nos.1 to 4 for commission of acts of unfair labour practice and prevention from further acts of unfair labour practice, also two applications for summoning documents/record supported by affidavits filed by Advocate for the respondents on 16-2-2008 and 23-2-2008. 2. The petitioner is a public limited company engaged in manufacturing and marketing of refined sugar. The respondent No,1 is a registered Trade Union in the establishment of the petitioner. The respondent No,1 Union although not in possession of C.B.A. Certificate has served a notice under section 25(1) of I.R.O., 2002 dated 28-1-2008 received by the petitioner on 4-2-2008 duly supported by charter of demands, copy whereof is filed as Annexure "A/1". It is alleged that the respondents Nos.2 to 4 and on their instigation members of the respondent No,1, inter alia, have committed following acts of unfair labour practice and "pressure" tactics for compelling the petitioner to accept their demands. On 29-1-2008 at about 3-15 p.m. a gate meeting was held by the respondents Nos.2 to 4 and the members of the respondent No,1, wherein they made threatening remarks against the General Manager of the petitioner to the effect that he may be a victim of bullet. They raised anti-management slogans. They also made the demand for giving permanent employment to the seasonal workers otherwise the respondents know how to deal with the management. Copy of security report, dated 29-1-2008 is filed as Annexure "A/2". Again on 30-1- 2008 at about 4-05 p.m. a gate meeting was held, in which the respondents and the members of respondent No,1 raised anti-management slogans and threatened that they will take revenge from
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the petitioner. Copy of security report, dated 30-1-2008 is filed as Annexure "A/3". On 1-2-2008 at about 4-20 p.m. a gate meeting was again held, wherein again threats were extended that the respondents Nos.2 to 4 shall take in to confidence local land lords to put pressure to the petitioner for the purpose of acceptance of their demands. Copy of security report dated 1-2-2008 is filed as Annexure "A/4". On 6-2-2008 there was illegal strike and complete cessation of work at factory between 8-30 to 9-20 a.m. As the workers left their place of work, the same was without notice of strike. Anti-management slogans were also raised against the Administration. Form "Y" was sent to the Director of Labour, Copy whereof is filed as Annexure "A/5" and a letter, dated 6-2-2008 was sent to the Assistant Director, Labour requesting to initiate action in accordance with law, copy whereof is filed as Annexures "A/6" and "A/7". On 9-2-2008 a poster was affixed at gate of the petitioner with the threat that if within two days promotion was not extended or their wages were not increased, the workers shall resort to coercive methods for acceptance of their demands. S.H.O. Of the area was duly informed vide Annexure "A/8". It is alleged that the respondents Nos.1 to 4 are acting in violation of section 64(1)(d) and section 64(1)(f) of I.R.O., 2002 being unfair , labour practice, as they are compelling the petitioner to accept the demands by using intimidation, coercion, pressure, threatening act, etc. Are resorting to pressure tactics for the purpose of acceptance of demands. It is prayed to restrain and prohibit the respondents Nos.1 to 4 from displaying banners placards, posters, wall chalking etc. Slogan raising demonstration etc. At/near the factory, and the respondent No,1 and through them all the workers not to resort to strike or go slow. Further to direct the respondent No,5 to initiate cancellation proceedings under section 12 of I.R.O., 2002 against the respondent No,1, having violated the provisions of I.R.O., 2002 and the rules framed thereunder. 3. On behalf of the respondents Nos.1 to 4, General Secretary of the respondent No,1 filed comments and counter-affidavit. Respondents Nos.1 to 4 have raised preliminary legal objection that the petition is not maintainable at law, as it is not signed by the owner/Director/Occupier or Manager under the Factories Act, 1934 and due to misjoinder of the respondent No,5. That the petitioner- Company is violating labour laws, as not paying minimum wages of Rs,4,600 per month, bonus, not giving Employees Old Age Benefit Cards and Social Security Cards. It is submitted that the respondent No,1 Union is C.B.A. And on 28-1-2008 through T.C.S. It had sent charter of demands under section 25(1) of I.R.O., 2002 which was received by the petitioner on 29-1-2008 vide Annexure "R/1". The petitioner-Company called bilateral meeting on 12-2-2008, which failed. The respondent No,1 Union then gave notice of conciliation under section 25(3) of I,R.O., 2002 on 13-2-2008 by registered post vide Annexure "R/2". The allegations contained in the petition are denied being false and mala fide, so also Annexures "A/2" to "A/7". Alleged gate meetings, speeches and illegal strike are denied. It is alleged that the petitioner-Company is violating Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and Factories Act, 1934 and has come with unclean hands to perpetuate injustice and violation of labour laws. 4. The petitioner-Company filed affidavit-in-rejoinder of Muhammad Nawaz, Manager Legal. Who has stated that by a resolution passed by Board of Directors, filed along with Vakaltnama, he has been authorized to file the present petition, for dealing with respondents Nos.1 to 4 for commission of acts of unfair labour practice and prevention for further acts of unfair labour practice and the respondent No,5 has been impleaded as pro forma party in view of prayer clause (iii), as such the petition is maintainable. It is denied that the petitioner has violated labour laws or committed acts of unfair labour practice. It is denied that the petitioner is not paying minimum wages of Rs,4,600 per month, not paying statutory bonus, not giving Employees Old Age Benefits Cards, Social Security Cards. These allegations are also outside the ambit and scope of proceedings in terms of section 49(4)(e) read with sections 63/64 of I.R.O., 2002, as special legislation, remedy and forum are provided in this respect. It is denied that the petitioner-Company has come with unclean
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hands or has filed the petition to perpetuate injustice and violation of labour laws. It is submitted that C.B.A. Certificate to the respondent No,1 Union was issued in terms of section 22(2) of I.R.O., 1969, which was valid for two years upto 1989. It is alleged that the respondent No,1 is illegally constituted body, as out of 10 office-bearers, 4 are outsiders, namely, Abdul Majeed, Aslam Pervez, Sharfuddin and Ali Hassan, as such it is in violation of section 64(1)(d) of I.R.O., 2002, copy of change of office-bearers is attached as. Annexure "A/9". It is denied that charter of demands was received by the petitioner on 29-1-2008. It is reiterated that the respondents Nos.1 to 4 are using intimidation, coercion, pressure, threats and resorting to acts of "Pressure" enumerated in memo. Of petition and are acting in violation of section 64(1)(d) and section 64(1)(f) of I.R.O., 2002 and are compelling the petitioner to accept the demands. Crushing seasons is hardly for 4 months. Any disruption of work at least up to March, 2008 will be detrimental to the petitioner, will cause loss of production, resulting inconsequential decline in revenue to exchequer and the workers will also suffer loss of wages: 5. Advocate for the petitioner filed objections on application for summoning documents/records supported by counter-affidavit of Muhammad Nawaz, Manager Legal, General Secretary of the respondent No,1 Union filed affidavit-in-rejoinder. ' Mr. Faisal Mehmood Ghani, learned Advocate for the petitioner has contended that the petitioner is Sugar Mill. Crushing season is hardly 4 months upto end of March or first week of April. Respondent No,1 has no valid C.B.A. Certificate. It was issued under section 22(2) of I.R.O., 1969 in April, 1987 and expired after two years in April, 1989. Respondent No,1 Union has sent charter of demands under section 25(1) of I.R.O., 2002 dated 28-1-2008 received by the petitioner on 4-2- 2008. It is submitted that the respondents Nos.2 to 4 and members of the respondent No,1 Union on 29-1-2008, 30-1-2008 and 1-2-2008 held gate meetings, raised anti-management slogans, made threatening remarks against the General Manager of the petitioner to the effect that he may be a victim of bullet, made demands to give permanent employment to the seasonal workers, who are engaged only for crushing season, and have threatened to involve local landlords to put pressure to the petitioner for the purpose of acceptance of their demands. It is submitted that it is not the fundamental right of the Union to hold meetings or demonstrations. It is contended that on 6-2- 2008 there was illegal strike and cessation of work at the factory between 8-30 to 9-20 a.m. Without any notice of strike, workers left their place of work and raised anti-management slogans against the Administration, for acceptance of their demands. Form "Y" was sent to the Directorate of Labour and letter to the Assistant Director Labour. It is submitted that respondent No,1 Union can give notice of strike on failure of conciliation proceedings, but so far conciliation notice is not received by the petitioner. Strike on 6-2-2008 by the respondents Nos.2 to 4 and on their instigation by other workers and cessation of work from 8-30 to 9-20 a.m. Compelling the petitioner to accept their demands by using intimidation, coercion, pressure and threat, is an illegal strike, which falls under section 64(1)(d) and section 64(1)(f) of I.R.O., 2002 and is an act of unfair labour practice and there being further such threats of the respondents Nos.1 to 4 to the petitioners, it is within the powers of the Commission to prevent occurrence of further acts of unfair labour practice on the part of the respondents Nos.1 to 4. Regarding legal objections raised by the Advocate for the respondents Nos.1 to 4, Mr. Faisal Mehmood Ghani, learned Advocate for the petitioner has urged that the petition has been signed by Manager Legal of the petitioner, who has been authorized by Board of Directors through resolution, which has been filed along with Vakalatnama. He falls within definition of Employer under clause (x) of section 2 of I.R.O., 2002. Respondent No,5 has been impleaded in the petition, as if the Commission will come to the conclusion that the respondents Nos.1 to 4 and workers on their instigation had resorted to illegal strike and committed acts of unfair labour practice, then the petitioner has made prayer in clause (iii) to direct the respondent No,5 to initiate cancellation proceedings under section 12 of I.R.O., 2002 against the respondent No,1
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for having violated the provisions of I.R.O., 2002 and the rules framed thereunder. It is submitted that in written statement the respondents Nos.1 to 4 have not specifically denied the acts of unfair labour practice alleged against them in the petition. Next it is contended that the petitioner has not violated any provision of labour laws and has never evaded SESSI and EOBI contribution. Even otherwise these are not acts of unfair labour practice. There are different forums to deal with such issues. The same cannot be made part of proceedings of this petition. Further it is contended that the respondent No,1 Union is an illegally constituted body as out of 10 office-bearers, 4 of them, namely Abdul Majeed, Aslam Pervez, Sharfuddin and Ali Hassan are outsiders and it is in violation of section 64(1)(d) of I.R.O., 2002. Advancing his arguments on applications for summoning of documents/record filed by Advocate for the respondents Nos.1 to 4, Mr. Faisal Mehmood Ghani, learned Advocate for the petitioner has contended that balance sheet and profit and loss account production record, list of workmen employed, wages/salary sheets, attendance register, SESSI and EOBI contribution record of the workers employed by the petitioner have no relevancy with the present case, as it is neither case of closure nor determination of an Industrial dispute, and regarding alleged non-payment of minimum wages, SESSI, EOBI contribution there are different forums and remedy available and it does not constitute unfair labour practice either on the part of employer or workman. Applications for summoning documents/records filed by Advocate for the respondents Nos.1 to 4, therefore, are liable to be dismissed. In support of his contentions Mr. Faisal Mahmood Ghani, learned Advocate for the petitioners has relied upon 1992 PLC 1012 (Karachi High Court), 1984 PLC 115 (Lahore High Court), 1995 ILLJ 1177 (High Court of Delhi), 1987 PLC 129 (Lahore High Court), Appeal No,12(40)/78 (Full Bench NIRC, 1995 PLC 675 (Supreme Court of Pakistan), 1992 PLC 125 (Karachi High Court), 1994 PLC 735 (Quetta High Court), 1992 PLC 1044 (Karachi High Court) and order dated 15-5-1997 of Member NIRC Karachi Bench in Case No,4A(03)/97-K,. Case No,4A(19)/97-K, Case No,4A(55)/97-K., Case No,4A(78)/97-K. And Case No,7(11)/97-K. Of Corn Pak Limited and Cornpak Employees Union. 7. Mr. Shafique Qureshi, learned Advocate for the respondents Nos.1 to 4 has contended that Registrar of Trade Unions respondent No,5 has been appointed by Government of Sindh under. Section 57 of I.R.O., 2002. He being statutory body cannot be made party in the petition filed before this Commission. The function and powers of Commission are described under section 49(4), section 51 of IRO, 2002 and NIRC (P&F) Regulations, 1973. The Commission has jurisdiction relating to Industrywise trade Union and not in respect of trade Union registered with Provincial Registrar Trade Union. The Commission cannot direct the Registrar Trade, Unions for cancellation of registration of the trade Union and the petition is not maintainable for misjoinder of the respondent No,5. Next it is contended that workers employed in the factory, who have allegedly committed unfair labour practice, have not been made party in the petition. Hence the Commission cannot pass general order against the respondents Nos.1 to 4. It is submitted that the petitioner has not filed list of workers, who resorted to strike as mentioned in Form "Y". It is submitted that the respondent No,1 Union has not instigated the workers to do strike and there was no strike. It is contended that any party, who comes to the Court to seek discretionary relief, shall come with clean hands. Conduct of the petitioner is very important. The petitioner does not follow labour laws, Industrial Commercial Employment (Standing Orders) Ordinance, 1968, Factories Act, 1934, SESSI, EOBI and does not pay production bonus, minimum wages to the workers. It is submitted that the petitioner is earning huge profits, but not paying benefits under labour laws to the workers. Next it is contended by Mr. Shafiq Qureshi, learned Advocate for the respondents. Nos.1 to 4 that C.B.A. Certificate has been filed with reply statement as Annexure "R/3". It is not mentioned in the certificate that it is for 2 or 3 years. The respondent No,1 Union, therefore, is C.B.A. Since 1987. The petitioner has never raised such objection before. It is submitted that in affidavit-in-rejoinder Muhammad Naw az, Manager Legal of the petitioner has stated that out of 10 office-bearers, 4 of
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them, namely, Abdul Majeed, Aslam Pervez, Sharfuddin and Ali Hassan are outsiders. It is not correct. All of them are employed in the petitioner-Establishment. Along with affidavit-in-rejoinder of Muhammad Hassan, General Secretary of respondent No,1 Union pay slip of January, 2008 (computerized) and EOBI contribution card (photostat) of Abdul Majeed have been annexed. Next it is contended by Mr. Shafique Qureshi, learned Advocate for the respondents Nos.1 to 4 that Muhammad Nawaz, who has signed the petition, is Manager Legal. He sits in head office at Karachi and has no concern with the factory. It is submitted that the respondent No,1 has served charter of demands under section 25(1) of I.R.O., 2002 dated 28-1-2008 on the petitioner on 29-1-2008 through OCS (Annexure "R/1") and also sent through registered post. Bilateral meeting called on 12-2-2008 failed, General Secretary of the respondent No,1 Union has sent conciliation notice under section 25(3) of I.R.O., 2002 dated 13-2-2008 (Annexure "R/2"). Conciliation meeting is to be held on 25-2- 2008. It is submitted that action of the respondent No,1 is in accordance with law. Legal strike is right of the respondent No,1 under section 31 of I.R.O., 2002. The petitioner has alleged that there was strike and cessation of work on 6-2-2008. The Labour Court can call off the illegal strike under section 39 of I.R.O., 2002. Advancing his arguments on applications for summoning of documents/records Mr. Shafique Qureshi learned Advocate for the respondents Nos.1 to 4 has contended that the petitioner is a big sugar mill in the area. It is violating labour laws, as such the applications for summoning the documents/record, e.g. Balance sheet and profit and loss account, production record, list of workmen, wage/salary sheet, .Attendance register, EOBI and SESSI contribution record from the petitioner and SESSI and EFOBI, have been filed to show violations of labour laws being committed by the petitioner. 8. Mr. Faisal Mahmood Ghani, learned Advocate for the petitioner in reply to arguments of Mr. Shafique Qureshi, learned Advocate for the respondents Nos.1 to 4 has contended that let the respondent No,1 Union may follow the procedure for raising industrial dispute prescribed under the Industrial Relations Ordinance, 2002, but the respondents Nos.1 to 4 and through respondent No,1 the workers be restrained from resorting to illegal strike. It is submitted that photocopy of EOBI contribution card and computerized pay slip of Abdul Majeed have been filed with affidavit-in- rejoinder of Muhammad Hassan General Secretary of respondent No,1 Union, which do not bear signature or seal of the. Petitioner. These documents can be prepared by any person on computer and have no authenticity. No document has been produced relating to employment of other three outsiders office-bearers Aslam Pervez, Sharfuddin and Ali Hassan. It is submitted that production bonus was curtailed as result of award given by the Labour Court No,VII, Sukkur on the charter of demands submitted by the petitioner in 2001. It is submitted that acts alleged in the petition on the part of the respondents constitute unfair labour practice under section 64(1)(d) and section 64(1) (f) of I.R.O., 2002 and the Commission can grant an interim relief to protect commission of unfair labour practice on the part of the respondent's Nos.1 to 4. 9. I have given my anxious consideration to arguments advanced by the learned Advocates for the parties and have perused the record. 10. First legal objection raised by the learned Advocate for the respondents Nos.1 to 4 is that the application is not maintainable, as it is not signed by the owner/Director/occupier or Manager under the Factories Act, 1934 and there is no resolution of Directors to file the petition before this Honourable Commission, as such the petition is not maintainable. With Vakalatnama of Mr. Faisal Mahmood Ghani, Advocate, which has been signed by Muhammad Nawaz, Manager Legal for the petitioner, certified true copy of the resolution passed by the Board of Directors of Al-Noor Sugar Mills Limited in their meeting held on 30th July, 2007, has been annexed, which shows that Muhammad Nawaz, Manager Legal possesses valid authority to represent the petitioner company before N.I.R.C. Accordingly this legal objection will not be tenable.
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11. The learned Advocate for the respondents Nos.1 to 4 has also challenged maintainability of the petition on the ground of misjoinder of Registrar Trade Union respondent No,5. According to the learned Advocate for the respondents Nos.1 to 4 this Honourable Commission has no jurisdiction to entertain unfair labour practice proceedings against the respondent No,5 to initiate cancellation proceedings under section 12 of I.R.O. , 2002 against the respondent No, 1. On the other hand the learned Advocate for the petitioner has contended that the petitioner has alleged unfair labour practice against .The respondents Nos.2 to 4 and members of the respondent No,1 -Union as they held gate meetings on 29-1-2008, 30-1-2008 and 1-2-2008, wherein they raised anti-management slogans, made threatening remarks that General Manager of the petitioner may be a victim of bullet and local land lords of the area shall be taken into confidence to pressurize the petitioner for acceptance of their demands and also resorted to illegal strike and cessation of work from 8-30 to 9-20 a.m. On 6-2-2008 and further they have threatened to continue with such acts of unfair labour practice. Registrar Trade Unions respondent No,5 has been joined in the petition, as in the event the petitioner is able to establish that acts of unfair labour practice, have been committed by the respondents Nos.1 to 4. And the same are in contravention of the provisions of the Industrial Relations Ordinance, 2002, in that case the Commission can direct the respondent No,5 to initiate cancellation proceedings under section 12 of I.R.O., 2002 against the respondent No,1, having violated the provisions of I.R.O., 2002 and the rules framed thereunder. It appears that the respondent No,5 has so far not filed comments: In absence of comments of respondent No,5 and without hearing respondent No,5 this legal objection of the learned Advocate for the respondents Nos.1 to 4 cannot be appropriately examined and decided. Even otherwise the petition cannot be said as not maintainable of misjoinder of the respondent No,5, as in case it is established at any stage of the proceedings that there is misjoinder of the respondent No,5, the only legal course will be to delete the respondent No,5 from the petition, but not to dismiss the entire petition on this score. 12. Next legal objection advanced in arguments by the learned Advocate for the respondents Nos.1 to 4 is that the respondent No,1 is trade Union registered with Provincial Registrar Trade Union, as such the petition cannot be filed against the respondent No,1 Union before the Commission and that the Commission will have jurisdiction only relating to Industrywise trade Union. This legal objection is misconceived and not sustainable. The present petition is filed by the petitioner, alleging that the respondents Nos.1 to 4 and the members of the respondent No,1 Union on 29-1- 2008, 30-1-2008 and 1-2-2008 held gate meetings, where they raised anti-management slogans, extended threats that the General Manager of the petitioner may be victim of bullet, and the local land lords will be taken into confidence to pressurize the petitioner for acceptance of their demands and on 6-2-2008 they resorted to illegal strike and cessation of work from 9-30 to 9-20 a.m. Such acts being acts of unfair labour practice on the part of the respondents Nos.1 to 4 and members of the respondent No,1 Union and further threats of occurrence of such acts of unfair labour practice, the Commission has been empowered under clause (e) of subsection (4) of section 49 of I.R.O. 2002 to deal with cases of unfair labour practice specified in section 64 on the part of workmen, collective bargaining agent, without any distinction, the collective bargaining agent may be an Industrywise Union or otherwise is a trade Union registered with Provincial Registrar. The bar on the Commission provided under clause (a) of subsection (4) of section 49 of I.R.O., 2002 relating to provincially registered trade Union, is in respect to adjudicate and determine an industrial dispute raised by the said trade Union, and is not for dealing with case of unfair labour practice against trade Union registered and certified as Collective Bargaining Agent by the Provincial Registrar Trade Unions. It shall be advantageous to reproduce clauses (a) and (e) of subsection (4) of section 49 of I.R.O., 2002, which reads as follows: - "(4) The functions of the Commission shall be to:
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(a) adjudicate and determine an industrial dispute to which an industrywise trade Union…
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