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Petitioner: AGRITECH LIMITED, UREA MANUFACTURING PLANT through Factory Manager VS Respondent: WORKERS UNION PAK-AMERICAN FERTILIZERS
Court Name: National Industrial Relations Commission Judge(s): Raja Fayyaz Ahmed Title:AGRITECH LIMITED, UREA MANUFACTURING PLANT through Factory Manager
vs WORKERS UNION PAK-AMERICAN FERTILIZERS Case No.: Case No,7A(136) of 2012 Date of Judgment:2013-03-26 Reported As: 2014 PLC 100 Result: Petition dismissed Judgment ORDER 'JUSTICE (R) RAJA FAYYAZ AHMED (CHAIRMAN).--- This application has been moved under Order 11- A of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 read with section 60 of Act X of 2012 with the following prayer:--- "It is thus prayed that the petition may kindly be accepted and the management of the petitioner company may be allowed to close down the manufacturing plant at Iskandarabad." 2. Precise relevant facts of the case are that the Factory Manager of Urea Manufacturing Plant, situated at Iskandarabad, District Mainwali of Agritech Limited has instituted the present petition. It is stated that Agritech Limited is a company registered under the Companies Ordinance, 1984 and has its Head Office at Ferozpur Road, Lahore, having two manufacturing units/factories at Iskandarabad, District Mianwali and at 3 KM Hattar Road, Haripur which thus; is a trans-provincial establishment amenable to Industrial Relations Act, 2012 (hereinafter referred to as the Act). The respondent-union is a Collective Bargaining Agent (CBA) registered as industrywise trade union having membership of around 360 members out of total 419 workers on the pay roll of the company. Further the case of the petitioner is that production of industrial unit at Iskandarabad District Mianwali has been curtailed to the lowest minimum on account of shut down and non supply of Sui Gas, which is the only source of manufacturing Urea. ' The letters written by SNGPL from time to time indicated inability of the SNGPL to supply Sui Gas at the required level With the details of the clogs and restrictions placed by SNGPL upon the company, vide letters dated 8-9-2010, 26-8-2010, 23-9-2010, 21-12-2010, 28-3-2011 and 14-12-2011 made as Annexures All to A/9. It has been contended by the petitioner that as a result of the non-supply of
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Sui Gas, the production of Urea fertilizer was curtailed to 149071 tons during the year 2011 as compared to the production capacity of 505520 tons whereas; in the year the production till June 30, 2012 was only 69327 tons, while in July, 2012 was nil thus; it remained closed due to non supply of raw material i,e, Electricity and Sui Gas. Copy of the production chart in respect of the said period are Annexures B/1 to B/2 to the application. It has been alleged that the company sustained huge financial loss of Rs,295,221,592 multiplied by further loss due to non production amounting to Rs,1387,921,382 in the year 2012. The accumulated loss suffered by the company as per case, in the last 18 months prior to the institution of the petition has been ground Rs,1.6 billion and on the other hand statedly the company has availed heavy loans from the Banks and is unable to pay loan installments on time due to financial disability which necessitated the re-structuring of the Bank Loans. Copies of the account statements are Annexures C/1 to C/3 to the petition. 'In view of the aforesaid facts, it has been contended that it has become impossible for the petitioner-company to run the factory at Iskandarabad without incurring further losses due to uncertainity of the B raw material and thus; is no longer viable for a prudent businessman to suffer further losses nor is it feasible to run the plant on heavy financial losses by making huge investments. 3. The respondent-union seriously contested the application by filing written-statement and also raised certain preliminary objections. Mainly in the preliminary objections, it has been contended that the present application is not maintainable under the law which has been moved just to crush the workmen. On merit of the case, it has been contended in the written-statement that the petitioner-company entered into agreement with SNGPL for the un-interrupted supply of the Sui Gas till, 2013, besides the plant has the facilities of getting Gas from Shakar Dara Gas Field but the company did not approach to any of the forums for implementation of the agreement which showed mala fides and ulterior motives of the company. The allegation that the company is not getting the required level of Gas has been controverted for being based on presumptions, while the Annexures All to A/9 clearly shows that interruption in the gas supply was only a temporary phase. Also the Sui Gas bills negate the stance taken by the company. It has been contended in Para-6 of the written-statement that the Petroleum Ministry has offered a new petroleum policy on 27-8-2012 whereby long term solution has been put in place to meet with the shortage of gas supply to the Fertilizer Industries. It is alleged that the applicant establishment has been revamped in the year 2010-2011 which entered into an agreement with the SNGPL to enhance the supply of the Sui Gas by incurring ten (10) billion rupees but in spite of increase in the production, application motivated by mala fides to close the Manufacturing Plant has been moved. The Group Manager (Mfg) on 28-9- 2012 has made an announcement, reproduced in para-9 of the written-statement which reads as under:--- "The factory was in continuous shut down for the last more than three months due to non availability of natural gas. Under the circumstance, we were despaired about financial condition of the company and planned lay off in the factory and filed a petition with the NIRC. By the grace of Allah, the gas supply is restored and plant has come into production. A ray of hope has arisen that we shall be able to bear the day to day expenses of the company and uplift in financial matters as long as plant is into operation." ' Thus, it has been controverted that after such announcement there is a short fall of Sui Gas in as much as; the quoted announcement of the Manufacturing Group Manager of the Company in conflict with the material averments, accordingly in view of the grounds urged in the written- statement, dismissal of the application has been prayed for. 4. As regards the maintainability of the application under Order 11-A of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 arguments of the learned Counsel for the parties have been heard at length.
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' The learned Counsel for the applicant contended that in respect of establishment trans-provincial in nature exclusive jurisdiction has been conferred by the relevant provisions of the IRA, 2012 in relation to individual grievances of workmen as well as unfair labour practices on the part of the workmen and the employer within the purview of sections 31, 32 and 33 read with sections 54 and 57 of the Act. The powers earlier exercised by the Labour Court under the repealed statute are exercisable by the Commission, as according to him the functions to be discharged and the powers exercisable by the Labour Court would now be discharged and exercised on the enforcement of Act X of 2012 by the Commission under the enactment i,e, Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 for granting the relief as prayed for within the purview of Order 11-A of the Standing Orders. The learned Counsel argued that the petitioner-company is a trans-provincial establishment having its Head Office in Lahore and manufacturing plants at Iskandarabad, District Mianwali and at 3 KM Hattar Road, Haripur which is an un-disputed fact hence, the respondent-union was registered with the Commission as industrywise trade union to whom CBA status was also accorded. The learned Counsel having gone through the provisions of Order 11-A of the Standing Order submitted that the power exercisable by the Labour Court for closing down can be competently invoked and exercised by the Commission by granting permission to close down the whole or any part of the establishment being trans-provincial in nature. To supplement his view point reference has been made to sections 1(iii), 2(x), 2(xii), 2(xvii), 2(xviii), 2(xxxii) and 2(xxxiii) of the Act. According to the learned Counsel on the enforcement of Act X of 2012, the jurisdiction of a Labour Court stands ousted in respect of the matters falling within exclusive domain of the Commission and by virtue of section 87 of the Act overriding effect has been given to the provisions of the said enactment. It has vehemently been argued that in the light of Order 11-A of the Standing Orders, rule of interpretation with regard to the existence of jurisdiction with the Commission and consequences of the removal of the subject-matter from domain of the Labour Court has to be applied in relation to establishment trans-provincial in nature and; so on the subject, thus the power to grant permission to close down the establishment would be available to the Commission therefore, for the employed word 'Labour Court' in Order 11-A, the word 'Commission' would be inferred and read in. The learned Counsel to re-inforce his submissions on the point argued that the Labour Court established under the provincial Labour Laws are now to deal with the matters other than those trans-provincial in character and doctrine of the implied repeal to the aforesaid extent in the Order 11-A of the Standing Orders would apply for the purposes of trans-provincial establishment which fall within the exclusive domain of the Commission. The learned Counsel in support of his arguments has placed reliance on the following case-law:--- (i) Tanveer Hussain v. Divisional Superintendent, Pakistan Railways and 2 others (PLD 2006 SC 249); (ii) Mumtaz Ali Khan Rajban and another v. Federation of Pakistan and others (PLD 2001 SC 169) at page 173; (iii) Muhammad Arif v. Muhammad Kawshar Ali and Muhammad Usman Ghani v. The State (PLD 1969 SC 435); (iv) South British Insurance Employees Union v. The Sindh Labour Court No,4 and others (1975 SCM R 49); (v) Messrs East-West Insurance Company Ltd. through Chairman and another v. Messrs Muhammad Shafi and Company through Managing Partner and 2 others (2009 CLD (Lahore) 960); (vi) Abdul Rahim Khan v. The State (1991 MLD (Karachi) 2448); (vii) National Bank of Pakistan, Quetta v. Muhammad Bakhsh (1989 PLC 139); (viii) Hakam Khuda Yar v. Emperor (AIR 1940 Lahore 129 Full Bench); and (xi) Jyotish Prokas Chavoraj and another v. Bugla Kanta Chaudhari and others (1922 Calcutta 274).
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5. Controverting the above noted contentions, the learned counsel for the respondent-union argued that power to grant permission to close down an industry has been conferred by virtue of Order 11-A of the Standing Orders to a "Labour Court" seized of the matter and implied repeal or vesting in of such jurisdiction in the 'Commission' even in relation to establishment trans-provincial in character is not available to the Commission nor can be inferred on the rule of interpretation laid down in the cited case-law. The word 'Labour Court' used in the Standing Order 11-A cannot be substituted by any rule of interpretation and principle of conflict between the old and new statute, inconsistency or absurdity. The relief claimed in the petition is not amenable to the jurisdiction of the Commission. The learned Counsel also made reference to sections 60 and 91 of the Act and has referred to 1988 SCM R 1725. The learned Counsel contended that the petitioner-company is not a trans-provincial establishment and only a Labour Court thus; has the jurisdiction to proceed with the matter. 6. It has been contended by the learned Counsel for the respondent-union that petitioner- establishment is not a trans-provincial establishment hence, the petition is not maintainable. It is worthwhile to note that in para No,1 of the petition it has been stated that the petitioner is a company registered under the Companies Ordinance, 1984 with its Head Office at Ferozpur Road, Lahore and two industrial units at Iskandarabad, District Mianwali and at 3 KM Hattar Road, Haripur. This stated fact has not been controverted during course of the arguments by the learned Counsel nor in the written-statement filed on behalf of the respondent-union. In this context it would be appropriate to refer to the meaning of word establishment as defined in section 2 (x) of the IRA, 2012 (X of 2012) hereafter referred the Act. "establishment" means any office, firm, factory, society, undertaking, company, shop or enterprise, which employs workmen directly or through a contractor for the purpose of carrying on any business or industry and includes all its departments and branches in the Islamabad Capital Territory, or falling in more than one Province, whether situated in the same place or in different places therefore, in view of the above stated fact, the petitioner-company is a trans-provincial establishment. It is not disputed in the written statement that Head Office of the petitioner-company is situated at Ferozpur Road, Lahore and industrial units are functioning and operating in Iskandarabad, District Mianwali and at 3 KM Hattar Road, Haripur. The location of the industrial units in Haripur is within the territorial limits of the Province of Khyber Pukhtunkhwa which is also not disputed therefore, for all intents and purposes, in my humble estimation the petitioner-company is a trans-provincial establishment within the meaning of section 2(xxxii) read with section 2(x) of the Act. In order to further ascertain, about the industrywise status of the respondent-trade union record from the Registration Branch was also requisitioned. From the perusal of this record it transpired that vide order dated 2-12-1998, the then learned Chairman-cum-RITU approved the request of the respondent-union to be registered an industrywise trade union in the establishment of Pak-American Fertilizer Ltd. And pursuant to this order registration certificate No,9/1998 was issued in favour the respondent-union accordingly was registered as industrywise trade union of workmen under the Industrial. Relations Ordinance, 1969 on the -2nd December, 1998 (Registration File No,3(20)/1998). Vide a subsequent order dated 6-9- 2011 the proceeding of the election and change of office bearers of the respondent-union was also approved by the learned RTU. "industry-wise trade union" means a trade union having its membership in more than one province in a group of establishments owned by one employer thus; for the going reasons it is concluded that respondent-union being registered industry-wise trade union has its members in the establishment of the petitioner-company at Lahore and industrial units Iskandarabad, District Mianwali and at 3 KM Hattar Road, Haripur therefore for what has been discussed hereinafore, the petitioner-company is a trans-provincial establishment. The contention in such behalf raised by the learned Counsel for the respondent appears to be devoid of substance.
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7. In order to appreciate the other arguments canvassed by the learned Counsel for the parties, it would be appropriate to reproduce hereinbelow Order 11-A of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968:--- "11-A. Closure of establish.--- Notwithstanding anything contained in Standing Order 11, no employer shall [terminate the epployment of more than fifty per cent of the workmen or] close down the whole of the establishment without prior permission of the Labour Court in this behalf, except in the event of fire, catastrophe, stoppage of power supply, epidemics or civil accommodation. ' Explanation.--- 'Close down' in this Standing Order includes lay-off of workmen beyond fourteen days where such lay-off results in closure of an establishment but does not include lock out declared, commenced or continued in accordance with the provisions of the Industrial Relations Ordinance, 1969 (XXIII of 1969). ' It abundantly clear from the above quoted provision of the Order that no employer shall terminate more than 50% of the workers or close down the whole establishment without prior permission of Labour Court in this behalf, except in the event of fire, catastrophe, stoppage of power supply, epidemics or civil commotion. ' In the light of the cited case-law, the learned Counsel for the petitioner empathetically argued that since the Commission has the exclusive jurisdiction in respect of trans-provincial establishment in matters relating to individual grievances, unfair labour practices on the part of the employer and workmen as well as; industrial disputes within the meaning of sections 31, 32, 33, read with sections 54 and 57 of the Act therefore, the word 'Labour Court' used in Order 11-A of the Standing Orders would stand substituted by the word Commission by applying the doctrine 'reading in' in view of the Act X of 2012 having been subsequently enacted as well as; of the redundancy of the word 'Labour Court' used in Order 11-A for the purposes of the matter in hand and intention to repeal may be gathered to this extent of the previous statute in the course of subsequent legislation or from incongruity of keeping both the enactments in force except to the extent of Provincial Labour Laws enacted by Provinces after the 18th Constitutional Amendment. 8. Before attending to the other aspects as argued by the learned counsel for the applicant, it is pertinent to mention that by virtue of IRA, 2012 within its scheme, creation of Labour Court has been done away with, as this appears; for the reason that on the subject consequent upon the 18th Constitutional Amendment on abolition of the concurrent list in the Constitution, enactment of Labour Laws fall within the domain of the legislature of the Provinces. The history of the creation of the Labour Courts may not be found relevant to be described however; a reference to the word 'Labour Court' used in a limited compass is a subject under the Act X of 2012. 'Labour Court' has been defined in section 2(xx) of the Act ibid which means a Labour Court established in a Province. The necessity for giving such definition co-relates to subsection (3) of section 57 of the Act whereby, while dealing with a case of 'unfair labour practice' of which the Commission is seized, it may refer the case to a Provincial Labour Court within whose jurisdiction the case has occurred or is likely to occur, either for report or for disposal within the meaning of clause (c) of subsection (3) of section 57 of the Act. Subsection (4) of the said section provides that the Labour Court to whom the case is so referred shall inquire into and if the case is referred to it for report forward its report thereon to the Commission, or if the case was referred to it for disposal, the Labour Court to continue the proceeding and dispose of the case as if the proceeding had originally commenced before it and grant such relief as the Commission has the power to grant. Subsections (3), (4) and (5) of section 57 read as under:--- (3) For the purpose of dealing with a case of unfair labour practice of which the Commission is seized, the Commission may--- (a) proceed directly with the case;
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(b) ask the Provincial Registrar within whose jurisdiction the case has occurred or is likely to occur to enquire into it and submit a report; or (c) refer the case to Provincial Labour Court within whose jurisdiction the case has occurred or is likely to occur, either for report or for disposal. (4) The Labour Court to whom the case is so referred shall enquire into it and, if the case was referred to it for report, forward its report thereon to the Commission or, if the case was referred to it for disposal, continue the proceedings and dispose of the case as if the proceedings had originally commenced before it and grant such relief as the Commission has the power to grant. (5) Save as provided in subsection (4) no Registrar, Labour Court or Labour Appellant Tribunal shall take any action, or entertain any application or proceedings, in respect of any matter. which falls within the jurisdiction of the Commission: ' Provided that no Court, including Labour Court, shall take any action or entertain any application or proceedings in respect of a case of unfair labour practice which is being dealt with by the Commission. ' Explanation.--- The expressions "industry-wise trade union" and "federation of such trade unions" refer to a trade union membership of which extends to establishments in more than one Province and a federation of trade unions whose membership extends to registered trade unions in more than one Province. 9. The Commission has the exclusive jurisdiction to deal, determine and adjudicate upon the matter of unfair labour practices on the part of the employers or workmen as well as; to redress individual grievances of workman within the meaning of sections 31, 32 and 33 and industrial disputes as provided by section 54 read with section 57 of the Act whereby the Commission has been invested with the additional powers and; all such powers and jurisdiction emanating from the provisions contained in the aforesaid sections, to essentially relate to trans-provincial establishment. For better understanding sections 54 and 57 of the Act are reproduced hereinbelow:--- "Section-54: Functions of the Commission.--- The following shall be the functions of the Commission, namely:--- (a) to adjudicate and determine an industrial dispute in the Islamabad Capital Territory and trans- provincial to which a trade union or a federation of such trade unions is a party and which is not confined to matters of purely local nature and any other industrial dispute which is, in the opinion of the Government, of national importance and is referred to it by that Government; (b) to register trade unions and industry-wise trade unions of an establishment of group of establishments in the Islamabad Capital Territory and trans-provincial, and federations of such trade unions; (c) to determine the collective bargaining agents amongst trade unions and industry-wise trade unions in the Islamabad Capital Territory and trans-provincial and federations of such trade unions; (d) to try offences punishable under--- (i) Section 67 other than subsections (1) and (6) thereof; and (ii) any other section, in so far as they relate to employers or workers in relation to a trade union or an industry-wise trade union in the Islamabad Capital Territory and trans-provincial, and a federation of such trade unions, or officers of such union or federation; (e) to deal with cases of unfair labour practice specified in sections 31 and 32 on the part of employers, workers, trade unions of either of them or persons acting on behalf of any of them, whether committed individually or collectively, in the manner laid down under section 33 or subsection (9) section 33 or in such other way as may be prescribed, and to take, in such manner
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as may be prescribed by regulations under section 66, measures calculated to prevent an employer or workman from committing an unfair labour practice; (f) to advise the Government, trade unions and industry-wise trade unions in the Islamabad Capital Territory and trans-provincial, and federations in respect of the education of workers in the essentials of trade unionism, including education in respect of their right and obligations, and to secure the provision of facilities required thereof, and to apportion the cost thereof between the Government, trade unions and federations of such trade unions, and the employers, in such manner as may be considered equitable by the Commission, subject to the approval of the Government. (g) to take measures calculated to prevent an employer or workman from committing an unfair labour practice in such manner as may be determined by regulations. (h) to deal with cases of individual grievance in the manners prescribed in section 33. (i) to exercise exclusive jurisdiction over the establishment or group of establishments situated in the Islamabad Capital Territory and trans-provincial; and such other powers and functions as the Government may, by notification in the official Gazette, assign to it from time to time. Section 57: Additional powers of the Commission.--- (1) In addition to powers which the Commission has under this Act--- (a) the Commission shall have power to punish any person who obstructs or abuses its process or disobeys any of its orders or directions, or does anything which tends to prejudice the case of a party before it, or tends to bring it or any of its members in relation to proceedings of the Commission into hatred or contempt, or does anything which, by law, constitutes contempt or Court, with simple imprisonment which may extend' to six months or with fine which may extend to fifty thousand rupees, or with both; and (b) for the…
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