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Petitioner: Shaikh MUHAMMAD IMRAN and 6 others VS Respondent: Messrs CRESCENT FOOD INDUSTRIES through partner and another
Court Name: National Industrial Relations Commission Judge(s): Ghulam Nauman Shaikh Title:Shaikh MUHAMMAD IMRAN and 6 others vs Messrs CRESCENT FOOD
INDUSTRIES through partner and another Case No.: Case Nos.4A(19)/24(19) of 2004-K Date of Judgment:2005-07-02 Reported As: 2007 PLC 184 Result: Application dismissed Judgment ORDER ' GHULAM NAUMAN SHAIKH (MEMBER).--- This petition under section 49(4)(e) of the IRO, 2002 along with application under Regulation 32(2)(c) of NIRC (P&F) Regulations, 1973 supported by affidavit, filed by the petitioners against the respondents. 2. The facts of the case as stated in the petition are that the petitioners are employed as permanent workmen in the respondent-establishment. More than 90 workers are employed in the respondent-. Establishment. The respondents do not issue appointment letters, attendance cards, Sindh Employees Social security cards, EOBI pension cards or give other rights under labour laws to the workers. For achieving their legal rights the workers formed a trade union by the name and style Crescent Food Industries Workers Union, Hyderabad, which was registered by the Registrar of Trade Unions, Hyderabad Region Hyderabad vide registration certificate filed as Annexure "A/1" with the petition. The union submitted an application to the Registrar of Trade Unions, Hyderabad Region, Hyderabad for determination of CBA by holding referendum in the respondent- establishment filed as Annexure "A/2" with the petition. Petitioners Nos.1 to 6 are office-bearers and petitioner No,7 is an active member of trade union. It is alleged that the respondents are against the trade union activities and have got registered a pocket union by the name and style Employees Union, wherein majority of the office-bearers are non-workmen and are officers of the respondents. It is alleged that after registration of the trade union of the petitioners, the respondents called the petitioners and pressurized them to dissolve the union, which they refused. The respondents then threatened that the factory would be closed and all the petitioners, who are the office-bearers would be terminated from service. It is alleged that on 10-2-2004 at 11-30 a.m.
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Muhammad Sadiq, respondent No,2 called the petitioners and pressurized them to sign the papers relating to dissolving the union and offered to pay the amount, which was incurred by the petitioners on formation and registration of the union. The petitioner refused to receive the amount, sign the papers and dissolve the union. Muhammad Sadiq, respondent No,2, therefore, threatened the petitioners of their termination and closing the factory. It is alleged that on 11-2-2004 the respondents refused to take the petitioners and 72 members of the union and resorted to illegal lock out. Union submitted such complaint to the Additional Director Labour, Hyderabad, who entrusted the enquiry to the Assistant Director Labour, Hyderabad, who submitted his report, which is filed as Annexure "A/4" with the petition. It is alleged that since 11-2-2004, the respondents are not taking the petitioners and 72 members of the union on duty although they are going for duty. However, complaints have been made by petitioner No,1, which are filed as Annexure "A/5" to "A/7" with the petition. It is alleged that the respondents have issued charge-sheets against the petitioners, alleging therein that the petitioners had raised slogans, instigated the workers for illegal strike and caused disturbance and commotion outside the gate of the factory, which have been filed as Annexure "A/8" to Annexure "A/13" with the petition. The petitioners denied the charges in their reply submitted to the respondents filed as Annexures "A/14" to "A/20" with the petition. The respondents issued enquiry notice to the petitioners Nos.3, 5 and 6, which have been filed as Annexure "A/21" to Annexure "A/23" with the petition. It is prayed to direct the respondents to lift illegal lock out and not to refuse to take the petitioners on duty on account of their trade union activities, restrain the respondents from pressurizing the petitioners to dissolve the union, dismiss, terminate or discharge the petitioners. 3. On presentation of petition ad interim prohibitory order was passed on 9-3-2004 on application under Regulation 32(2)(c) of NIRC (P&F) Regulations, 1973 filed by the petitioners, whereby the respondents were directed to maintain status quo on the charge-sheets against the petitioners dated 11-2-2004 in respect of their employment till the next date, which continues from date to date. 4. The respondents filed parawise comments with preliminary legal objections on main petition and counter-affidavit on stay application. It is submitted that the present petition is filed by the petitioners in retaliation to the case filed by the respondents bearing No,4A(15)/2004-K, along with Application No,24(15)/2004-K, wherein interim prohibitory order, dated 20-2-2004 was passed by this Bench of Commission, which is filed as Annexure "R/1" with the parawise 'comments. It is alleged that since the petitioners have violated and disobeyed the interim prohibitory order, dated 20-2-2004 as such the respondents have filed contempt proceedings under section 51(a)(b) of the IRO, 2002, which has been registered Case No,7(04)/2004-K. It is alleged that the petitioners still are violating the order passed by this Bench of Commission and they have failed to report for duty and are creating unrest amongst other workers. They used to gather at the gate of the factory, staged agitation at the road of the factory and also at the Press Club and pressurizing the respondents to take on duty 72 workers, who were not in the employment of the respondents at the relevant time. The respondents denied that 72 workers used to work in the respondent-establishment. The respondents also denied not to have issued appointment letters. Since Employees Social Security cards and EOBI cards to the workers and do not observe other labour laws. The respondents stated that they are paying contribution to the Sindh Employees Social Security Institution and also EOBI. It is submitted that record of the company also is being checked by the said Institutions from time to time, which clearly shows that there never remained 90 workers on the roll-call of the respondent. The respondents have produced copies of Sindh Employees Social Security Institution contribution schedule for the period from July, 2003 to January, 2004 together with its payment vouchers as Annexures "R/2" to "R/8" and copy of inspection report of Sindh Employees Social Security Institution (Vigilance and Survey Cell), Head Office, Karachi Annexure "R/9" and copy of EOBI payment slips for
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the period from August, 2003 to January, 2004. As Annexures "R/10" to "R/15" with the parawise comments. The respondents denied that they are against the trade union activities. It is submitted that there are two registered trade unions "Workers Union" and "Employees Union" in their establishments. The respondents have denied that they have got registered their pocket union or any of office-bearer of the said union is officer of the respondents. The respondents denied to have pressurized the petitioners to give up trade union activities. They also denied that on 10-2-2004 at about 11-30 a.m. Muhammad Sadiq, respondent No,2 called the petitioners and pressurized them to give up the union and they were also offered the amount incurred by them on the formation and registration of the union and on their refusal he had threatened them of dismissal or termination or to close down the factory. The respondents denied that on 11-2-2004 they refused to take 72 workers on duty and resorted to illegal lock out. It is alleged by the respondents that on 10-2-2004 the petitioners created law and order situation in the factory and they damaged the machinery and ceased the entire plant of the factory and they had broken glasses of the production rooms and used provocative slogans, gheraoed the managed and they gathered inside the factory and instigated other workers not to perform work. Due to their instigation illegal strike was resorted on 10-2-2004 at about 12-00 noon, which continued upto 29-2-2004. The respondents sent Form "Y" to the Additional Director Labour Government of Sindh at Hyderabad from 10-2-2004 which have been filed in Case No,4A(15)/2004-K by the respondents before this Bench of Commission, wherein ad interim prohibitory order, dated 20-2-2004, Annexure "R/1" was passed by this Bench of Commission. It is submitted that after the interim prohibitory order, dated 20-2-2004 was passed, about 17 workers reported for duty on 24-2-2004, but the rest 13 workers including the petitioners failed to report for duty. The respondents addressed a letter dated 10-2-2004 to DPO, District Hyderabad and lodged an F.I.R. On 15-2-2004 and submitted report, dated 17-2-2004 to Assistant Director, Labour, Hyderabad, while a detailed report dated 26-2-2004 was also submitted to the Additional Director Labour, Government of Sindh, Hyderabad. It is submitted that charge-sheets dated 10/11-2-2004, which have been filed by the petitioners as Annexure "A/8" to "A/13" with the petition were served on the petitioners. The respondents received their reply Annexures "A/14" to "A/20" filed by the petitioners with the petition. It is submitted that so-called report dated 19-2-2004 submitted by Mr. Ahmed Bux Aftab, Assistant Director Labour is misleading as according to his report the said officer visited the factory, but he failed to record statement of a single worker or official of the respondents factory, while as per his report he recorded the statements of certain workers, but he has failed to mention their names in the report. It is submitted that from the report it is evident that the respondents had allowed 13 workers to report for duty, who in fact were working and were on the roll-call of the respondents company, while the petitioners themselves refused to perform their duty, which is clear violation of the interim prohibitory order, dated 20-2- 2004 passed by this Bench of Commission in Case No,4A(15)/2004-K filed by. The respondents. It is alleged that the petitioners were pressurizing and intimidating the management of respondents to take on duty other persons, who were outsiders and were not on the roll-call of the respondents company, as such the petitioners themselves were involved in the acts of unfair labour practice as enunciated under section 64 of the IRO, 2002. It is denied that the respondents have not allowed 72 persons since 11-2-2004 but it is stated that in fact with mala fide intentions and petitioners had brought several outsiders to enter in the factory, who were not in the employment and on the roll- call of respondents and pressurized the management to take them on duty, to which the respondents had refused. It is alleged that in fact the petitioners have resorted to illegal strike since 10-2-2004 and they are still continuing the said illegal strike and have violated the orders, dated 20-2-2004 passed by this Bench of Commission. It is submitted that on refusal by the respondents to take outsiders on duty, the petitioners along with Rana Mahmood Ali Khan, their Labour Representative have staged protest in the city as well as at Press Club Hyderabad and also at the
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factory gate and created unrest amongst other workers and tried to intimidate, pressurize and threaten the respondents, as such illegal course adopted by the petitioners clearly establishes unfair labour practice on their part, as enunciated under section 64 of the IRO, 2002. It is submitted that the petitioners have not come with clean hands and they are continuously violating the orders of this Bench of Commission and have failed to report for duty, as such the petition filed by them be dismissed. 5. The petitioners have not filed any rejoinder. 6. I have heard arguments of Rana Mahmood All Khan, learned Labour Representative for the petitioners and Mr. Mahboob Rizvi, learned Advocate for the respondents. 7. Rana Mahmood All Khan learned Labour Representative for the petitioners has contended that petitioners Nos.1 to 6 are office-bearers and petitioner No,7 is an active member of Crescent Food Industries Workers Union, Hyderabad. The respondents also have got registered pocket union namely "Employees Union". It is submitted that the respondents have charge-sheeted the petitioners, alleging to have instigated the workers resorted to illegal strike, raised slogans and gathered at the factory gate. It is submitted that charge-sheets relate to trade union activities of the petitioners. The respondents also have lodged F.I.R. No,37/2004 at Police Station Sakhi Peer against the petitioners on the same allegations, which was quashed by the Honourable High Court of Sindh, Circuit Bench, Hyderabad. It is submitted that the trade union of the petitioners also has submitted an application for determination of CBA by holding referendum. It is submitted that the petitioners since have refused to dissolve the union as asked by the respondents, as such charge- sheets have been issued to them, which is an act of unfair labour practice. 8. On the other hand it is contended by Mr. Mahboob Rizvi, learned Advocate for the respondents that this petition has been filed by the petitioners in retaliation of the petition of unfair labour practice filed by the respondents against the petitioners bearing No,4A(15)/2004-K for resorting to illegal strike by the petitioners. It is contended that there are only 30 workers employed by the respondents on their roll-call and the respondents have never employed 90 workers as claimed by the petitioners. It is submitted that the respondents pay contribution in respect of their employees to Sindh Employees Social Security Institution and EOBI. Inspection was also held by Sindh Employees Social Security Institution (Vigilance and Survey Cell), Head Office, Karachi. Copy of contribution schedules for the period from July, 2003 to January, 2004 of Sindh Employees Social Security Institution have been filed with parawise comments as Annexures "R/2" to "R/8". It is contended that the petitioners had been instigating the workers and resorting to illegal strike, raising slogans, assembling at the gate and compelling the respondents to take on duty 72 workers, who were not in the employment of the respondents. Such act on the part of petitioners of instigating and resorting to strike not in connection with an industrial dispute but for illegal demand is an illegal strike, as such the respondents have issued charge-sheets to the petitioners, to which they have submitted their reply. Letters of enquiry have been served on the petitioners. It is contended that prior to this petition, the respondents had filed petition bearing No,4A(15)/2004-K for unfair labour practice on the part of petitioners for instigating the workers and resorting to an illegal strike and continuing with the same, wherein ad interim prohibitory order was passed on 20- 2-2004, whereby the petitioners were directed not to go on illegal strike and to call off their illegal strike forthwith and they were restrained from raising slogans, staging demonstration or hurling abuses against the management. They were also directed to resume their duty forthwith and in case of their failure within 48 hours the management will be at liberty to appoint other workers in their place and to carry on their business. Despite such interim prohibitory order, dated 20-2-2004 passed by this Honourable Bench of Commission in Case No,4A(15)/2004-K, the petitioners did not resume their work in the factory. For violating the prohibitory order, the respondents also filed contempt proceedings under section. 51(a) of IRO, 2002 bearing No,7(04)/2004-K, which also are
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pending. It is submitted that the respondents have never gate stopped the petitioners or resorted to lock out. It is submitted that Form "Y" regarding instigating and resorting to illegal strike by the petitioners was sent to the Additional Director Labour, Hyderabad/Conciliator, Hyderabad, Annexure "R/23", which will also show that there are only 30 workers employed in the respondents- establishment. It is contended that issuing of charge-sheet and holding of enquiry is prerogative of the respondents employer and the same cannot be said as an act of unfair labour practice. It is contended that there is difference in the criminal proceedings and the departmental proceedings, as such order of Honourable High Court of Sindh, Circuit Bench, Hyderabad on F.I.R. No,37/2004 will not affect the charge-sheets, which have been served on the petitioners and the departmental proceedings for the act of misconduct under Standing Order 15 of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 against the petitioners are pending. In support of his contention Mr. Mahboob Rizvi, learned Advocate for the respondents has placed his reliance on an order of Member of NIRC in case of Abdul Sattar v. Messrs S.G.S. Pakistan (Pvt.) Ltd., through Managing Director and 3 others reported in 2001 PLC 186, order of Full Bench of National Industrial Relations Commission in case of Adil Khan and 3 others v. Postmaster-General Southern Sindh Circle, Karachi and another reported in 2001 PLC 190, judgment of Honourable Karachi High Court in case of Searle Pakistan Limited through Deputy Director v. Full Bench National Industrial Relations Commission, Islamabad and 2 others reported in 2002 PLC 87, Order of Member, National Industrial Relations Commission in case of Muhammad Rafique Qureshi, General Secretary, Super Biscuit Factory Mazdoor Union, Hyderabad v. Messrs Super Biscuit Factory, Muslim Town, Phuleli, Hyderabad through managing Partner and another reported in 2002 PLC 104, order of Member, National Industrial Relations Commission in case of Shahmurad Sugar Mills Mehnatkash Union (CBA), through General Secretary v. Shahmurad Sugar Mills Limited PECHS, Karachi through Managing Director and another reported in 2005 PLC 88. ' I have given my anxious consideration to the arguments advanced by Rana Mahmood Ali Khan, learned Labour Representative for the petitioners and Mr. Mahboob Rizvi, learned Advocate for the respondents and have gone through the petition and application under Regulation 32(2)(c) of NIRC (P&F) Regulations, 1973, supporting affidavits filed by the petitioners, parawise comments and counter-affidavit filed by the respondents and the documents produced by both the parties. 10. In the instant case Muhammad Saleem, petitioner No,7 was served with charge-sheet dated 10- 2-2004, alleging that on 10-2-2004 at 11-30 a.m. He resorted to illegal strike and also instigated other workers to resort to illegal strike, created disturbance, damaged the material worth Rupees one lakh by stopping machines. Rest of the petitioners were served with charge-sheets dated 11-2- 2004 that on 11-2-2004 they refused to resume work in the factory and along with other workers resorted to demonstration and raised slogans outside the factory gate, resorted to illegal strike and also instigated other workers to resort to illegal strike. The petitioners submitted their replies to the charge-sheets. The respondents then served enquiry letters on the petitioners. From the record it is evident that Crescent Food Industries. Workers Union, Hyderabad, of which the petitioners Nos.1 to 6 claim to be office-bearers and petitioner No,7 claims to be an active member, was registered on 14th January, 2004. Admittedly the Crescent Food Industries Workers Union is not CBA. Under the provisions of 25(1) of the IRO, 2004 only CBA can raise an industrial dispute.. It appears that the petitioners pressurized the management to take on duty 72 workers, who according to the respondents were not in the employment and on the roll-call of the respondents. On refusal of the respondents to take those 72 workers on duty as they were not in their employment, the petitioners are alleged to . Have instigated other workers and to have resorted to illegal strike. Although the claim of the petitioners is that there are more than 90 workers in the respondents establishment, but so far the petitioners have not produced on record any document to substantiate their version that there are more than 90 workers employed in the respondents factory, whereas according to
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the respondents there are only 30 workers in their employment, for whom the respondents are paying contribution to Sindh. Employees Social Security Institution and EOBI. Even this fact stands confirmed from the inspection held by the Director Vigilance and Survey Cell of Sindh Employees and Survey Cell of Sindh Employees Social Security Institution, Head Office for the period from January, 2003 to December, 2003 filed as Annexure "R/9" with the parawise comments of the respondents. No affidavit-in-rejoinder was filed by the petitioners to rebut these documents. The petitioners also have not produced any document on record to show that 72 workers, for whom they had been constantly pressurizing the respondents to take them on duty, were in the employment of the respondents. None of these 72 workers have either filed an affidavit in support of the version of the petitioners or any of them have ever moved for their right or grievance to the Labour Department or Labour Court. The petitioners are not office-bearers of CBA, as such they even cannot pursue the cause of those 72 workers for their employment in the respondents- establishment. 11. There is no any specific instance of victimization of the petitioners on account of their trade union activities mentioned in the petition, or any threat in respect of their employment on account of their trade union activities by the respondents prior to alleged threats of 10-2-2004 by Muhammad Sadiq, respondent No,2, which stands denied by the respondents in their parawise comments. Any strike resorted by the petitioners as alleged in the charge-sheets, not being in connection with an industrial dispute, will be an illegal strike, which is an act of misconduct as enunciated under S.O.15(3)(k) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. In support of this contention reference is made to 1960 PLC 35, wherein at page 47 the Honourable Supreme Court of Pakistan has held that an illegal strike would clearly fall within the category of gross misconduct. Further it was observed that what action the employer should actually take in a given case is for him to decide by the exercise of a reasonable discretion. 12. It is fairly well-settled that it is legal right of employer to initiate disciplinary proceedings against the employee on a charge of misconduct and take such proceedings to its logical end. This right of the employer cannot be curbed or curtailed merely because the employee happens to be an office-bearer of a trade union. Mere serving charge-sheet on the ground of misconduct cannot be treated as unfair labour practice, as taking part in trade union activities by a worker does not entitle him to commit any act of misconduct. In fact issuance of charge-sheet and holding of enquiry to find out whether the charges levelled against the delinquent employee is correct or not is statutory requirement. An employee cannot be permitted to frustrate/circumvent such proceedings by simply pleading victimization on account of trade union activities unless he places on record sufficient material to show that the impugned action being taken against him is motivated by his lawful and legitimate trade union activities. I am fortified in my view by order of Full Bench of National Industrial Relations Commission in case of National Motors Ltd. v. Muhammad Hanif reported in 1987 PLC 547, wherein at page 550 it was observed that it is necessary to state clearly the duties and functions of this Commission in matters arising out of disciplinary actions against workers. In such matter the-National Industrial Relations Commission does not sit in judgment over the action of management against workers as an appellate forum. The Commission is not concerned with the deficiency if any, of law or fact in the action and will not set aside the Management's decision merely upon a finding of error in the procedure adopted or for want of sufficiency of evidence upon which the action proceeds. Nor will the Commission interfere only because the action requires correction: That may be the function of the forum acting under section 25-A of the IRO, 1969. Further it was observed that the evidence before the Commission has to be only in respect of the ingredients under section 15. For if the facts alleged in the charge stood proved before the Inquiry officer, then the respondent was guilty and in that situation the…
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