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Petitioner: MUJEEBUR REHMAN and 13 others VS Respondent: Messrs SHELL PAKISTAN LTD. through Managing Director and others
Court Name: National Industrial Relations Commission Judge(s): Ghulam Nauman Shaikh Title:MUJEEBUR REHMAN and 13 others vs Messrs SHELL PAKISTAN LTD. through
Managing Director and others Case No.: Case Nos.4A(79) of 2005/K, 24(93) of 2005/K Date of Judgment:2006-01-17 Reported As: 2007 PLC 640 Result: Application dismissed Judgment ORDER ' GHULAM NAUMAN SHAIKH (MEMBER).--- This order will dispose of application under Regulation 32(2)(c) of N.I.R.C.(P&F) Regulations, 1973 supported by affidavits filed by the petitioners in above said petition, thereby seeking to issue direction to the respondents not to compel the petitioners to resign from service or to accept the transfer and termination and not to give effect to any termination or transfer order or any adverse order against the petitioners, so also an application under section 50(3)(a) read with section 45(2) of the Industrial Relations Ordinance, 2002 read with section 151, C.P.C. Supported by affidavit of Rashid Ahmed, Employees Relation Manager filed by the respondents seeking clarification of the interim order, dated 13-6-2005 passed by this Bench of Commission on above said application under Regulation 32(2)(c) of N.I.R.C.(P&F) Regulations, 1973 and also an application under section 151, C.P.C. Supported by affidavit of Muhammad Zamir, General Secretary of Shell Employees Union, the petitioner No,14, praying therein. To call the record of employees/ workers, employed in the respondents establishment and to appoint a commission to investigate the physical working strength in the respondents establishment. 3. On presentation of the petition, on application under Regulation 32(2)(c) of N.I.R.C.(P&F) Regulations, 1973 an interim order was passed on 13-6-2005 as follows:-- "Meanwhile the respondents if have issued letters of termination by way of retrenchment in respect of the petitioners, they are directed not to give effect to such termination letters till the next date, which has been extended from date to date and the same continues to be in operation till this date."
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4. I have heard arguments of Mr. M.A.K. Azmati, learned Advocate for the petitioners and Mr. Shahid Anwar Bajwa learned Advocate for the respondents. 5. Mr. M.A.K. Azmati, learned Advocate for the petitioners has contended that the petitioners Nos.1 to 13 are employed as permanent workmen with the respondents. They are members of Shell Employees Union, the petitioner No,14, which is C.B.A. In the respondents establishment. The respondents on one or the other pretext are removing the permanent workmen in contravention of provisions of Labour Laws and are increasing the contractor workers, thereby the respondents are pressurizing, intimidating, coercing and inducing the petitioners to resign, otherwise they will be terminated or transferred. The respondents in order to achieve their object launched Voluntary Separation Scheme in the month of May, 2005, attached therewith resignation pro forma with certain incentives, so as to remove the permanent unionized workers. Such kind of voluntary separation schemes were launched by the respondents in 1994 and 1996, thereby the respondents had removed permanent unionized workers and in their place had appointed contract workers. There are about 500 such contract workers in the respondents establishment working on the similar jobs as that of the petitioners as against 104 unionized workers. This time the union and the workers did not accept the Voluntary Separation Scheme, so much so the period specified therein expired and none of the workers submitted their option of Voluntary Separation Scheme. Therefore, the respondents started pressurizing the workers to fill the Voluntary Separation Scheme pro forma, and tender resignation, otherwise the respondents threatened to terminate their services. The workers so compelled by the respondents to fill the voluntary separation scheme pro forma and the attached resignation pro forma, complained to their union, the petitioner No,14, which sent a letter, dated 6-5-2005 to the respondents filed as Annexure "P.5" with the petition that the officers of the respondents-management were pressurizing and forcing the workers to sign on the resignations, otherwise company shall- remove them from the employment, which conduct of the officials are calculated to be acts of unfair labour practice on their part. The respondents sent their reply dated 10-5-2005 to the said letter of the union, thereby assuring that the Scheme will remain voluntary and no one will be forced, threatened, pressurized or compelled to submit his resignation under the scheme. Consequently the union, petitioner No,14 conveyed the said assurance of the respondents to the workers. It is submitted that the petitioners were on duty on 9th and '10th of June, 2005, but none of them was either informed or served the letter of retrenchment alleged to have been issued on 9-6-2005 by the respondents and sent to the petitioners on 9th or 10th June, 2005 by registered post. The respondent also did not tell to the petitioners on 10th June, 2005, not to come on duty on 11th June, 2005, as their services were terminated by way-of retrenchment. As usual when the petitioners went on their duty on 11-6-2005, they were gate stopped by the police and commandos deployed by the management at the gate and all forcible measures were adopted to pressurize the petitioners to sign on the resignations. None of the petitioners tendered resignation. It is, therefore, not retrenchment as alleged by the respondents, but it is their mala fide and unlawful act amounting to unfair labour practice. It is submitted that the contract workers, who are more than 500 are working on similar jobs in the respondents-establishment, and they being juniors to the petitioners, have been retained, as such the respondents have also violated the principle of "Last Come-First go". It is urged that the facts and, circumstances of the case require for recording evidence to determine whether the alleged retrenchment declared by the respondents is legal and valid according to law and is not an act of unfair labour practice. It is submitted that some workers continue to work in the respondents-establishment, but only the name of contractor is changed from time to time by the respondents. The respondents have also failed to give list of all other indirect workers working in the respondents establishment through contractors, as such it shall be essential to record evidence to ascertain whether only 104 unionized workers are involved in the process of respondents-establishment or other 500 workers indirectly
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employed through contractor also fall within the same category that of the petitioners. The learned Advocate for the petitioner contended that, the respondents with reply statement have filed retrenchment letters with endorsement of their persons and also postal receipts and copies of covering envelopes, with endorsement of postman, it therefore, requires evidence to ascertain truth of the endorsement on the said documents. It is submitted that despite interim order, dated 13-6-2005, the respondents did not allow the petitioners to enter in the establishment although they continued to go on duty daily. On the contrary the respondents moved an application under section 50(3)(a) read with section 45(2) of the Industrial Relations Ordinance, 2002, seeking clarification of interim order, dated 13-6-2005, although the interim order, dated 13-6-2005 is very clear. It is submitted that on 13-6-2005 the respondents also had filed petition under section 49(4) (e) of the Industrial Relations Ordinance 2002 against the petitioners bearing No,4A(78) of 2005/K, wherein this Bench of Commission passed an interim order, dated 13-6-2005, which is obeyed by the petitioners, who have done nothing adverse to the respondents. It is. Submitted that in the present petition the respondents have raised legal objection regarding maintainability of the petition and jurisdiction of the National industrial Relations Commission, whereas according to the respondents the petition filed by them is maintainable. The maintainability of the petition can only be decided after evidence is recorded. 6. Next it is contended by the learned Advocate for the petitioners that the main ground which the respondents have urged for the retrenchment of the unionized workers is that the oil now will be transported to up-country through white pipe line constructed by oil companies, but it shall be 'seen that neither PARCO nor PSO, who are partners with Shell for construction of white pipe line have retrenched their workers on the said ground. It is submitted that since no worker including the petitioners accept the voluntary separation scheme, the respondents have come with alleged declaration of retrenchment of seniors and retaining junior workers on the same job, which is discrimination and an act of unfair labour practice. It is contended that. The respondents are making discrimination by terminating unionized workers and retaining non-unionized workers employed 'indirectly through contractors in the establishment. There is not a single word by the respondents that they were suffering any losses so as to terminate services of, the petitioners by way of retrenchment. The act of the respondents is of victimization of the petitioners, because the petitioners did not' accept Voluntary Separation Scheme. It is not a case of reorganization, but of unfair labour practice, as firstly the petitioners were motivated to accept Voluntary Separation Scheme and tender resignation and on refusal the petitioners were forced and gate stopped through police and commandos from entering in the establishment. This Bench of Commission, therefore, rightly and validly passed interim order, dated 13-6-2005, directing the respondents not, to give effect to the letters of termination by way of retrenchment, if issued. Retrenchment letters are void and have no legal value. Despite the interim order, dated 13-6-2005, the respondents are not allowing the petitioners to. Enter in the establishment, thereby the respondents are violating and defying the interim order, dated 13-6-2005, which is clear and -unambiguous and needs no clarification as it is sought by the respondents in the application filed by their Advocate. 7. With regards to the application under section 151, C.P.C. Filed by Advocate for the petitioners, it is contended by the learned Advocate for the petitioners that two prayers made in the application for calling of the record and inspection of record by the commission are not two distinct prayers, but the same are interconnected with each other, which are permissible. It is submitted that if any party conceals the facts and is reluctant to produce the record, the Commission has power to call the record and appoint commission to inspect the same. ' In support of above said contentions the learned Advocate for the petitioners has cited the case- law 1961 PLC 95 (Supreme Court India), 1962 PLC 435 (Industrial Court West Pakistan), 1996. PLC .18 (Labour Appellate Tribunal Sindh) 1998 PLC 80 (Labour Appellate Tribunal Sindh), 2001 PLC 543
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(National Industrial Relations Commission F.B.), 1963 PLC 131 (Allahabad India), 1968 PLC 244 (Industrial Court West Pakistan), 1984 PLC 115 (Lahore High Court) and PLD 1985 Lah. 407 (Lahore High Court D.B.). 8. Mr. Shahid Anwar Bajwa, learned Advocate for the respondents has contended that with the petition, the petitioners have filed letter of retrenchment of Ghazanfar Ali one of the petitioners in the petition as Annexure P.7. If the letter of retrenchment was not given and served on the petitioners by the respondents, then how the petitioners got the copy of retrenchment letter of the petitioner Ghazanfar Ali. It is contended that the letters of retrenchment were sought to be given to the petitioners by the respondents on 11-6-2005, which they refused to receive and sign thereon. Such endorsement is recorded in presence of two witnesses on the retrenchment letters, Which the respondents have filed with their reply statement as Annexure "Q". It is submitted that letters of retrenchment dated 9-6-2005 were also sent to the petitioners to upcountry on 9-6-2005 and at Karachi on 10-6-2005 by registered post, and postal receipts and copies of covering letters with endorsement of postman also have been filed as Annexure "R" with reply statement and with application for placing documents on record filed by the respondents on 6-8-2005, Presumption, therefore, can be drawn under section 27 of the General Clauses Act, 1897 the letters of retrenchment are deemed to have been served on the petitioners on 11-6-2005, as such act of unfair labour practice if any as alleged by the petitioners, had been committed before filing of the petition, as such the same can be determined by appropriate forum and not by the Commission. In the title of the petition Jan Bahadur has been shown as petitioner No,8 and Ejazuddin 'as petitioner No,14, but their names have been erased. It is submitted that Jan Bahadur and Ejazuddin had accepted. Retrenchment letters and their acceptance dated 13-6-2005 has been filed as Annexures "S" and "T" with the reply statement by the respondents. 9. Learned Advocate for the respondents. Contended that the respondents retrenched 20 workers and transferred 6 workers. None of the transferees has filed petition before the Commission. All the six transferees have joined at their new place of postings. It is submitted that the need arose to the respondents for retrenchment and transfer of workers for the reason that the respondents handle petroleum products, Diesel, petrol, oil etc. There used to be three oil refineries in Pakistan (I) Attock Oil Refinery at Rawalpindi, (2) National Refinery at Karachi and (3) Pakistan Refinery at Karachi. From these latter two refineries situated at Karachi, the petroleum products were pumped to Keemari Karachi, where the retrenched workers were posted. From Keemari through Railway wagons and 1200 oil tankers the petroleum products were transported to other part of the country. About four years back Pak Arab Refinery was set up at Mehmood Kot, near to Multan, which reduced transport of petroleum products. A Company was also formed by the name Pak Arab Pipe Lines Company PAPCO. That company laid down a pipe line from Karachi to Mehmood Kot for pumping of petrol and diesel, which is now not carried through oil tankers, but are pumped through this pipe line. Multan is meeting requirements of Sukkur etc. Number of oil tankers is reduced from 28 to 15 as in Feb.-May, 2005. It is for this reason that number of workers was reduced. Number of shifts was also reduced because of work load. 20 workers were required to be retrenched. The respondents tried to retrench 20 workers through voluntary separation scheme, filed as Annexure "A" with the petition, but the respondents did not succeed, because the union petitioner No,14 did not cooperate. The respondents, therefore, caused retrenchment of the petitioners with effect from 11-6-2005.. Petitioners were also relieved. Apart from legal dues, the respondents allowed special benefits under voluntary separation scheme to the petitioners ranging from 6 Lakhs to 10 Lakhs. Consequent to retrenchment six workers were transferred. 10. The learned Advocate for the respondents contended that the petitioners filed the present petition on 13-6-2005. It is not mentioned in the petition that the petitioners were forcibly asked to sign the resignations. It is submitted that termination of employment is a single event, which
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occurs on one day, which in the present case occurred and was given effect on 11-6-2005. Mr. Shahid Anwar Bajwa, learned Advocate for the respondents submitted that it was his and his client's considered view that the retrenchment of the petitioners is not suspended through the interim order, dated 13-6-2005 by this Bench of Commission. The 'petitioners were claiming that the Commission had ordered their instatement, as such there were two contradictory interpretations of interim order, dated 13-6-2005. It is submitted that it was anticipated by the respondents that the petitioners would refuse to receive the letters of retrenchment when sought to be served in person, as such the respondents adopted both modes of service, of letters of retrenchment On the petitioners. It is submitted that the respondents, therefore, had sent letters of retrenchment to the 'petitioners on 9th June, 2005 and 10th June, 2005 through registered post and the same are deemed to have been served and service effected on 11-6-2005. The letters of retrenchment also say that the same will be effective from 11-6-2005 irrespective of its service. It is submitted that relieving became effective on 10-6-2005. Mr. Shahid Anwar Bajwa, learned Advocate for the respondents has also invited attention to section 27 of General Clauses Act, 1897 and submitted that it says that when the letter is sent by registered post, it is presumed to have been served. No personal service is also required before sending by registered post. It is submitted that at this stage whether the endorsement on retrenchment letters is true or wrong cannot be ascertained without recording evidence. Reliance is placed on 2004 PLC 343 (Karachi High Court D.B.) PLD 1979 Kar. 493 (Karachi High Court D.B.), 2001 PLC 79 (Member N.I.R.C.), 2000 PLC 430 (Karachi High Court D.B.), 2003 PLC 240 (Member N.I.R.C.) and 2002 PLC (C.S.) 956 (Supreme Court of Pakistan). 11. Mr. Shahid Anwar Bajwa, learned Advocate for the respondents has contended that the petition is not maintainable when the act is committed. It is submitted that there is bald statement and there is no specific allegation. It is not mentioned by the petitioners as to what trade union activities the petitioners were doing so that the respondents are victimizing them. Retrenchment is right of respondents-employer, who is sole judge of his commercial establishment. It is submitted that retrenchment took place on 11-6-2005, as such Commission has no jurisdiction to pass order under Regulation 32(2)(c) of N.I.R.C.'(P&F) Regulations, 1973, as no status quo ante can be granted. The petitioners shall either file application before the Labour Court or file complaint. In support of his contentions Mr. Shahid Anwar Bajwa, learned Advocate for the respondents has relied upon the cases reported in 2003 PLC 244; 2004 PLC 38; PLD 2004 Lah. 65 (Member N.I.R.C.), 1998 PLC 403 (Member N.I.R.C), 1970 SCMR 491, 1970 PLC 671 (Industrial Court West Pakistan), PLD 1976 Lah. 611 (Lahore High Court), 1984 PLC 1645 (Karachi High Court), PLD 1986 Lah. 90 (Lahore High Court D.B.), 1986 PLC 985 (Karachi High Court D.B.) 1990 PLC 599 (Karachi High Court D.B.), 1991 PLC 32 (Lahore High Court), 1997 SCMR 1508 (Supreme Court of Pakistan F.B.), 1998 SCMR 68 (Supreme Court of Pakistan. D.B.) 2006 PLC 380 and 2005 PLC 301 (N.I.R.C. F.B.). 12. Mr. Shahid Anwar Bajwa, learned Advocate for the respondents has contended that the petitioners have raised the question that employees of contractors are employees of the respondents, which can only be determined after the evidence is recorded. It is submitted that the respondent leased out section to the contractor, who has employed his own workmen. Rate of the contractor also is being changed after every two years. Such documents have been filed by the respondents. It is also submission of the respondents that employees of contractor are not employees of the respondents. It is fundamental right of the respondents to give work on contract. Petitioner No,14-union is in knowledge of this fact since long and it has never raised any grievance regarding contractor workers. The petitioners have also not stated in their petition that the respondents have any power to hire and fire of the workers employed by the contractor. In support of his submissions Mr. Shahid Anwar Bajwa, learned Advocate for the respondents has referred the cases reported in 2002 PLC 52 (Karachi High Court D.B.), 1985 SCMR 257 (Supreme Court of Pakistan
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F.B.), 1983 PLC 477 (Karachi High Court), 1980 PLC 1224 (Labour Appellate Tribunal Sindh), 1980 PLC 888 (Labour Appellate Tribunal Sindh), PLD 1977 Kar. 250 (Karachi High Court), PLD 1976 Lah. 1169 (Lahore High Court). 13. On the application under section 151, C.P.C. Filed by Advocate for the petitioners, it is contended by Mr. Shahid Anwar Bajwa, learned Advocate for the respondents that two prayers are made in this Application. First to call record of employees/workers employed by Shell Pakistan Limited. Secondly to appoint Commission to examine physical strength of respondent-establishment. These prayers are under two provisions of Industrial Relations Ordinance, 2002. One under section 45(2) of I.R.O., 2002 and another under section 51(b) of I.R.O. 2002. Commission has power under both these provisions. However it is specifically laid down under Rule 67 of Sindh Civil Court Rules and Rule 74 of Sindh Chief Court Rules that except where otherwise provided by these rules or by any law for the time being in force, an interlocutory application shall contain only one prayer or one series of alternative prayers of the same kind, as such the two prayers made by the petitioners in their application under section 151, C.P.C. Cannot be allowed. Application under section 151, C.P.C. Filed by the petitioners, may be dismissed on this score alone. It is submitted that there are only 104 employees of the respondents. There is no other employee of the respondents. The respondents also have no record of other persons.-Next it is, contended by Mr. Shahid Anwar Bajwa, learned Advocate for the respondents that it is premature stage to appoint Commission, as it is not stage of recording of evidence. Regarding this prayer application be deferred at latter stage, per se will have no objection if Commission, who is well- conversant with oil industry is appointed. 14. I have considered arguments advanced by Mr. M.A.K. Azmati, learned Advocate for the petitioners and Mr. Shahid Anwar Bajwa, learned Advocate for the respondents and have gone through the petition, application under Regulation 32(2)(c) of N.LR.C.(P&F) Regulations, 1973, supporting affidavits, reply statement, counter-affidavit, affidavit in rejoinder and documents produced by the parties in support of their submissions. So also application under section 50(3)(a) read with section 45(2) of the Industrial Relations Ordinance, 2002 read with section 151, C.P.C. With supporting affidavit filed by Advocate for the D respondents, seeking clarification of interim order, dated 13-6-2005, counter-affidavit/objections filed by the petitioners, and also application under section 151, C.P.C. supported by affidavit filed by Advocate for the petitioners to call the record of employment of employees/workers employed in the respondents establishment and to appoint a Commission to investigate the physical strength in the respondents establishment and objections on this application filed by Advocate for the respondents and have gone through the case-law cited by the learned Advocates. 15. It is an admitted fact that the petitioners are permanent workmen in the respondents- establishment. They are also members of Shell Employees Union, which is C.B.A. In the respondents-establishment. According to the learned Advocate for the petitioners besides 104 unionized workers including the petitioners, there are about 500 other workers indirectly employed by the respondents through contractor, Who are performing the same jobs and belong to same category as that of the petitioners, and none of them has been retrenched although juniors to the petitioners hence the petitioners are being discriminated as they are members of C.B.A. And principle of retrenchment is violated. According to the learned Advocate for the respondents the said workers, working in the establishment are not employees of the respondents, but they are employees of contractor, to whom the job had been given on contract by the respondents. The rates of the job on contract is being modified and varied after every two years under the contract agreements. The petitioners being junior in their category were retrenched following the principle of "Last come-first go". However, it is emphasized by the learned Advocate for the petitioners that those about 500 workers are also employees of the respondents, who in order to deprive them of
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their legal rights and benefits under the labour laws, have termed them to be employees of the contractor. Since these contrary versions pertain to the disputed question of law and facts, as such the same can only be resolved after evidence is recorded. 16. It is contended by the learned Advocate for the respondents that due to construction of white…
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