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Petitioner: PAKISTAN MINERAL DEVELOPMENT CORPORATION (PMDC) HEAD OFFICEAND BRANCH OFFICE UNION through General Secretary VS Respondent: PAKISTAN MINERAL DEVELOPMENT
Court Name: National Industrial Relations Commission Judge(s): Raja Fayyaz Ahmed Title:PAKISTAN MINERAL DEVELOPMENT CORPORATION (PMDC) HEAD OFFICEAND
BRANCH OFFICE UNION through General Secretary vs PAKISTAN MINERAL DEVELOPMENT Case No.: Case No,4B(282) of 2012 and C.M. A24B(124) of 2012 Date of Judgment:2013-03-26 Reported As: 2014 PLC 56 Result: Petition dismissed Judgment ORDER ' RAJA FAYYAZ AHMED (CHAIRMAN).--- The precise facts of the case are that Pakistan Mineral Development Corporation (PMDC) Head Office and Branch Office Staff Union 'CBA (Regd.) Head Office 13-H/9, Islamabad filed this petition under section 33(9) read with section 57(2)(c) of IRA, 2012 (hereinafter referred to as the Act) whereby it has sought for the enforcement of rights secured and guaranteed under the law/settlement for considering the workmen for promotion, perpetual injunction and restraining the respondent-corporation from appointment of officers (non-technical) from outside. Following relief has been claimed:--- "Under these circumstances and legal position of the case it is respectfully prayed that the impugned resorting to direct appointment of Assistant Managers (serial Nos. 5 and 6 of the advertisement dated 9-10-2012), by the respondent corporation may kindly be annulled and cancelled and respondent-corporation may be directed to consider promotion departmentally as per rules, settlements and undertakings in the best interest of justice and fair play." 2. It is the case of the petitioner (CBA) that the Chief Executive of the respondent-corporation, being the Managing Director has been empowered by its Board of Directors for appointment of staff and promotion from the staff, to the officers level (non-technical) as per rules approved by the Board and settlement with the CBA. The Board of Directors of the respondent-corporation, on its incorporation in the year 1974 adopted service rules approved in the year 1974 of its predecessor Corporation namely West Pakistan Industrial Development Corporation, framed in pursuance of section 23(2)(d) of West Pakistan Industrial Development Corporation Ordinance No,XXXVIII of 1962
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as amended by Ordinance No, XXVI of 1971, called the West Pakistan Industrial Development Corporation Employees Services Rules. 3. The Board of Directors of the respondent-corporation (PMDC) in its meeting held on 3-8-1974 resolved that the Rules and Regulations relating to various affairs of PMDC are yet to be formulated and till such time the rules are finalized, it was decided that the existing rules and regulations of PMDC should be adopted in PMDC, as an interim measure. The relevant rule as adopted regarding appointments and promotions reads asunder:--- "All appointments against posts shall be made through properly constituted Selection Committee. Vacancies in the higher posts shall normally be filled in by departmental promotions, taking seniority, merit, suitability and experience duly into consideration of which the Corporation shall be the sole judge. Direct recruitment shall be resorted to only in cases where departmental candidates are either not available or are found unsuitable. Technical experts and Advisors of non- Pakistan origin may be employed by The Corporation, but such appointments shall be governed by rules and regulations embodied in separate agreements entered into with such experts and advisors. " 4. It is contended that the above said rules shall remain in force till the respondent-corporation framed its own rules. The respondent-corporation framed PIMDC Employees Service Rules, 2012 approved by the Board of Directors on 24-1-2012 but; the implementation of these rules in respect of the staff and workers was suspended vide OM No, PMDC/EST-47(c), dated 20-4-2012 and a committee was constituted vide the aforesaid O.M. to discuss PMDC Employees Service Rules, 2012 in detail. It has been contended in the petition that according to the new rules appointments were to be made 75% through promotion and 25% by direct recruitment, which was objected to by the petitioner-union (CBA). Further the case of the petitioner is that the adopted rules hereinabove mentioned were never repealed which therefore, are in force. The list of the employees eligible for promotion as Assistant Manager has been filed as Annexure-D/1 to the petition. S. It has been contended in the petition that the settlement dated 22-8-2011 (Annexure-E) has been arrived at and executed between the parties for a period of two years, which was made on Demand No,7 of CBA besides the other demands put through Charter of Demands by the petitioner CBA. The settlement so arrived at between the parties relating to Demand No,7 is reproduced herein below in extenso for convenience:--- "DEMAND NO.07 PROMOTION AND RE-DESIGNATION OF STAFF/WORKERS 1. Management agreed in principle that additional posts in Officer Cadre will be created to accommodate the maximum staff members. 4. Senior most Security Guard at PMDC Head Office will be re designated as Security Inspector. 5. Staff member who is operating generator will be re-designated as Generator Operator. 14. Promotion Committee meeting will be conducted on yearly basis preferably in the month of January for the promotion of staff/workers and promotions shall be made on seniority-cum fitness basis to fill in vacancies, if any." 6. It is further the case of the petitioner that by virtue of settlement dated 23-6-2000 with the CBA, on Demand No,4 it was agreed that promotion to the officer cadre will be made in accordance with rules/policy reflected in OM No, PMDC/EST-11 dated 5-7-2000 whereby the existing promotion policy for stiff members to officer cadre was revised and it was decided that for the promotion to the post of Assistant Manager and equivalent, graduation shall remain the main criteria. However, in order to provide some encouragement to the non-graduate employees, promotion to the post of Assistant Manager will be granted to graduate and non-graduate Assistants (SG) in the ratio of 75% and 25% respectively i,e, after promotion of three graduates, one non-graduate will be promoted in the relevant disciplines, subject to availability of vacancies and fulfillment of other
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criteria. However, the non-graduate employees shall not be promoted beyond the level of Assistant Manager and equivalent. 7. In the light of the above referred facts, case has been set up by the petitioner CBA that in violation of the rules and settlement above-mentioned, the respondent-corporation made an advertisement in the Daily Dawn dated 9-10-2012 inviting applications for direct appointments against 4 available posts of Assistant Manager (Mkt/HR) and one post of Assistant Manager (Finance) appearing at Sl. Nos.5 and 6 of the advertisement and soon thereafter on having come to know of the said advertisement, the petitioner CBA submitted a representation on 17-10-2012 seeking for the annulment of the said advertisement to the extent of the proposed appointments to be made on posts described at Sl. Nos.5 and 6 of the advertisement but with no response, which resulted into the institution of the present petition. 8. Maintainability of the present petition instituted by the petitioner CBA has been questioned in view of the preliminary objections taken in the written statement filed on behalf of the respondent as well as; the same has seriously been contested on merits as well; on the grounds mentioned therein. 9. The learned Counsel for the parties have been heard at length as regards to the maintainability of the instant petition, in view of the preliminary objections raised in the pleading of the respondent-corporation. 10. The learned counsel for the respondent contended that under the law, the CBA cannot enforce any right guaranteed or secured by any law to the workmen under section 39(9) of IRA, 2012. According to the learned Counsel the settlement executed between the employer and the CBA passes through the following stages and the CBA to act for the workmen during the first three steps:--- (a) "Submission of Charter of Demands by the Collective Bargaining Agent (CBA). (b) Bilateral negotiations between the Employer and the CBA to promote an amicable settlement. (c) Signing of Settlement by CBA on behalf of workmen and by an employer. (d) Enforcement of any right guaranteed to workman. (e) CBA is to act on behalf of workmen during the first three stages mentioned hereinabove, but it cannot enforce under section 33(9) of IRA, 2012 any right guaranteed or secured, inter alia, to any workman by or under any law. (0 The right which has accrued as result of the settlement executive between the petitioner CBA and PMDC read with the PMDC employees Service Rules, 2012 is to the effect that 75% of vacancies will be filled by promotion and 25% will be filled through direct recruitment. The eligibility of PMDC employees to the extent of 75% of vacancies devolves on workers who may in the judgment of the Departmental Promotion Committee and the PMDC, be considered fit to hold the position of Assistant Manager. The crux of the matter is that the right to be considered for promotion as Assistant Manager in terms of 75% quota is the individual right and not the right of the CBA." 'Secondly according to the learned Counsel, rights secured as a result of the settlement executed between the CBA and PMDC or under the law, read with PMDC employees Service Rules, 2012 is to the effect that 75% of vacancies will be filled by promotion and 25% by direct recruitment. The former mentioned vacancies related to the workers who D may be found fit for selection by the Departmental Promotion Committee to hold the position of Assistant Manager and the right to be considered for promotion as Assistant Manager in terms of 75% quota is the individual right and not the right of the CBA hence, it has strenuously been argued that the instant petition filed by the CBA for the enforcement of the right for promotion is not maintainable under the law, moreover; the author of grievance notice dated 17-10-2012 served on the Managing Director of respondent- corporation is the Pakistan Mineral Development Corporation (Pvt.) Ltd. Staff Union (CBA) thus the grievance petition filed by the CBA is not tenable in law which ought to have been submitted by the
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workers in their individual capacity and the improper service of the grievance notice is fatal to the maintainability of the instant petition. ' Reliance has been placed in support of the aforementioned contentions on the reported judgments in the cases i,e, Karachi Pipe Mills Employees Union, Karachi v. Karachi Pipe Mills Ltd. Karachi (1992 SCM R 36); Mazdoor Union Faran Sugar Mills through General Secretary v. Faran Sugar Mills Ltd. and 2 others (2006 PLC 404) and Bolan Textile Mills v. Workers Union Bolan Textile Mills and 2 others (1986 PLC 751). ' In the context as argued, reference has been made to the provisions of sections 3(c), 13 followed by sections 14 and 19, sections 20, 22, 23, 25, 27 and 35 to 38 which relate to an industrial dispute or is likely to arise, the employer or as the case may be; the Collective Bargaining Agent may communicate his or its view in writing either to Works Council and copy of the communication shall also be sent to the other party and on failure of bilateral negotiations in the Works Council, the employer or the Collective Bargaining Agent may within the prescribed time serve on the other party of the dispute, a notice of lock-out or strike as the case may be in accordance with the Act and simultaneously with the service of such notice, deliver a copy of such notice to Conciliator and to the Commission and further proceeding to be undertaken as provided by the succeeding sections on the subject. It has further been contended that the question agitated in the instant petition and the relief claimed clearly spell out that the grievance related only to a very small number of workers claiming to be entitled for promotion according to the quota against the available vacancies who claimed to be qualified for selection and appointment and in such behalf section 60 of the IRA, 2012 as regards the enforcement of guaranteed rights has been referred which provisions are para-mataria to section 25-A read with 34 of the IRO, 1969 as well as; to subsection (9) of section 33 of Act Ibid. 11. The learned counsel for the petitioner contended that the instant petition has competently been filed by the CBA for the enforcement of the guaranteed rights under the law and settlement which does not relate to an individual right but involved an enforceable rights of the Workmen of the establishment thus; the CBA legitimately on the subject served grievance notice on the employer and the petition accordingly has been instituted for the enforcement of the guaranteed rights under the law and settlement under section 33(9) of the Act ibid and; the contentions to the contrary with regard to the non-maintainability of the petition instituted by the petitioner CBA is devoid of substance. However; the learned counsel categorically submitted that the provisions of sections 33(1) and (9) are analogous to, as contained in sections 25-A and 34 of IRO, 1969. As regards the case-law cited by the learned Counsel for the respondent-corporation, it is submitted by the learned Counsel for the petitioner that the subject-matters of the judgments may be noticed as well as; he also placed reliance on 1992 SCM R 36. Lastly it has been argued that as the interests of all the workers are involved therefore, the instant petition has been filed by the petitioner CBA. 12. For better understanding and to appreciate the arguments put-forth by the learned Counsel for the parties, section 33 of IRA (Act X of 2012) and section 25-A of the IRO, 1969 hereafter referred to as the Ordinance in view of the case-law cited by the learned counsel for the management, are reproduced herein below in a comparative form:---
S.33 of IRA, 2012. Redress of Individual Grievances.--- (1) A worker may bring his grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement for the time being in force to the notice of his employer in writing, either himself or through his shop steward or collectiveS.25-A of IRO, 1969. Redress of Individual Grievances.--- (1) A worker may bring his grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement for the time being in force to the notice of his
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bargaining agent within ninety days of the day on which the cause of such grievance arises. (2) Where a worker himself brings his grievance to the notice of the employer, the employer shall, within fifteen days of the grievance being brought to his notice, communicate his decision in writing to the worker. (3) Where a worker brings his grievance to the notice of his employer through his shop steward or collective bargaining agent, the employer shall, within seven days of the grievance being brought to his notice, communicate his decision in writing to the shop steward or as the case may be, the collective bargaining agent. (4) If the employer fails to communicate a decision within the period specified in subsection (2) or, as the case may be subsection (3), or if the worker is dissatisfied with such decision, the worker or the shop steward may take the matter to his collective bargaining agent or to the Commission or, as the case may be, the collective bargaining agent may take the matter to the Commission, and where the matter is taken to the Commission, it shall give a decision within seven days from the date of the matter being brought before it as if such matter were in an industrial dispute:Provided that a worker who desires to so take the matter to the Commission shall do so within a period of sixty days from the date of the communication of the employer or, as the case may be, from the expiry of the period mentioned in subsection (2), or subsection (3), as the case may be. (5) In adjudicating and determining a grievance under subsection (4), the Commission shall go into all the facts of the case and pass such orders as may be just and proper in the circumstances of the case. (6) If a decision under subsection (4) or an order under subsection (5) given by the Commission or a decision in an appeal against such a decision or order is not given effect to or complied with within a seven days or within the period specified in such order or decision, the defaulter shall be punishable with imprisonment for a term which may extent to one year, or with fine which may extend to seventy- five thousand rupees, or with both. (7) No person shall be prosecuted under subsection (6) except on a complaint in writing:--- (a) by the workman if the order or decision in his favour is not implemented within the period specified therein; or (b) by the Commission if an order or decision thereof is not complied with. (8) For the purposes of this section,employer in writing, either himself or through his shop steward or (collective bargaining agent), within three months of the day on which cause of such grievance arises. (2) Where a worker himself brings his grievance to the notice of the employer, the employer shall, within fifteen days of the grievance being brought to his notice, communicate his decision in writing to the worker. (3) Where a worker brings his grievance to the notice of his employer through his shop steward or (collective bargaining agent) the employer shall, within seven days of grievance being brought to his notice, communicate his decision in writing to the shop steward or, as the case may be, the (collective bargaining agent). (4) If the employer fails to communicate a decision within the period specified in subsection (2) or, as the case may be subsection (3), or if the worker is dissatisfied with such decision, the worker or shop steward may take the matter to his (collective bargaining agent) or the (labour court), or, as the case may be, the (collective bargaining agent) may take the matter to the (Labour Court), and where the matter is taken to the (Labour Court), it shall give (a decision) within (seven) days from the date of the matter being brought before it as if such matter were in an industrial dispute:Provided that a worker who desires to so take the matter to the (Labour Court) shall do so within a period of two month from the date of the communication of the employer or, as the case may be, from the expiry of the period mentioned in subsection (2) or subsection (3), as the case may be. (5) In adjudicating and determining a grievance under subsection (4), the [Labour Court] shall go into all the facts of the case and pass such orders as may be just and proper in the circumstances of the case. (6) Omitted by Ordinance IX of 1977.(7) Omitted by Ordinance IX of 1977. (8) If a decision under subsection (4) or an order under subsection (5) given by the Labour Court or a decision
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workers having common grievance arising out of a common cause of action may make a joint application to the Commission. (9) Any collective bargaining agent or any employer may apply to the Commission for the enforcement of any right guaranteed or secured to it or him by or under any law or any award or settlement. (10) There shall be a Tripartite Counsel for review of grievances of workers in the Islamabad Capital Territory comprising not less than three members each of the workers, employers and the Government:Provided that the representatives of the workers and the employers shall be nominated by the Government after consultation with registered trade unions and employers' organizations to the notified in the Official Gazette.of the Tribunal in an appeal against such a decision or order is not given effect to or complied with within a week or within the period specified in such order or decision, the defaulter shall be punishable with imprisonment for a term which may extent to one year, or with fine which may extend to one thousand rupees. (9) No person shall be prosecuted under subsection (8) except on a complaint in writing:--- (a) by the workman if the order or decision in his favour is not implemented within the period specified therein, or (b) by the Labour Court or Tribunal, if an order or decision thereof is not complied with. (10) For the purposes of this section, workers having common grievance arising out of a common cause of action may make a joint application to the Labour Court. 13. The learned Counsel for the respondent has also made reference to the scheme of the Act by citing certain provisions referred to in para-10 supra in relation to an industrial dispute. The term 'Industrial Dispute' has been defined in clause (xvi) of section 2 of the Act and means any dispute or difference between employers aid employers or between employers and workmen or between workmen and workmen which is connected with the employment or non-employment or the terms of employment or the conditions of work of any person. Reference was also made to clause (c) of section 3 of the Act which provides that every trade union and employers Association shall frame its own constitution and rules to elect its representatives in full freedom to organize its administration and activities and to formulate its programmes. The functions of Collective Bargaining Agent have been specified in section 20 of the Act whereby the Collective Bargaining Agent in relation to an establishment or group of establishments shall be entitled to undertake collective bargaining with the employer or employers in relation to matters of employment, non- employment, the term of employment or the conditions of work other than matters which relate to the enforcement of any right guaranteed or secured to it or any workman by or under the law, other than this Act, or any award or settlement. A Collective Bargaining Agent is also entitled to represent all or any of the workmen in any matter or judicial proceedings under this Act besides; a Collective Bargaining Agent can give notice of, and declare, a strike in accordance with the provisions of this Act and can nominate representatives of workmen on the Board of Trustees of any welfare institutions or Provident Funds and of Workers Participation Fund established under the Companies Profits (Workers Participation) Act, 1968 (XII of 1968) as well as; by virtue of subsection (2) of section 20, a Collective Bargaining Agent may, without prejudice to its own position, plead as a party to any proceedings under this Act to which it is itself a party or any federation of trade unions of which it is a member. The nomination, election and tenure and functions of Shop Steward have been given respectively in sections 23 and 24 of the Act ibid whereas; the composition of the Works Council has been provided in section 25 of the Act while the functions of the Works Council have been enumerated in the following section to the extent of workers participation in the management, election or nomination, tenure of office, participation in all the meetings of the committee constituted in the prescribed manner in all matters relating to the management, Factory/Establishment except Commercial and Financial transaction for the purpose of discussion
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and; the restriction on the decision of the management without the advice in writing of workers representatives including the procedure has been given in section 27 of the Act. 14. The instant application has been filed under section 33(9) read with section 57(2)(c) of the Act. The functions of the Commission have been given in section 54 and the additional powers with which the Commission has been invested are specified in section 57 of the Act. In relation to the case in hand, the relevant provisions of sections 54 and 57 of the Act are reproduced herein below for convenience: "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 as under-- (i) (ii) (e) to deal with cases of unfair labour practice…
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