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Petitioner: Ch. ABDUL KHALIQ and others VS Respondent: HABIB BANK LIMITED through President and others
Court Name: National Industrial Relations Commission Judge(s): Muhammad Shabbir Jamal Title:Ch. ABDUL KHALIQ and others vs HABIB BANK LIMITED through President and
others Case No.:Appeals Nos.4A(04), 4A(08), 4A(10), 4A(09), 4A(14) of 2006 and 4A(30) of 2006-Q Date of Judgment:2007-02-06 Reported As: 2007 PLC 590 Result: Order accordingly Judgment ORDER ' MUHAMMAD SHABBIR JAMAL (MEMBER).--- These petitions have assailed retrenchment order, dated March 10, 2006 whereby the services of 2300 employees working in Habib Bank Limited as Security Guards, Drivers and others manual workers were dispensed with. It is contended that the petitioners came to know through newspaper advertisement which appeared in daily "Khabrain", "Nawa-eWaqt", "Express", News, Dawn, Jang of 10-3-2006 that their services have been terminated. It is contended that the management has resorted to this mode of retrenchment, which is stated to be in violation of the provisions of Standing Orders 11 and 11-A of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, which is contended to be mala fide. It is contended that a prescribed procedure has been laid down in the aforesaid law for the purpose of retrenchment, which has not been followed and so the action of the management on the face of it is violative of law, rules and procedure. It is also contended that the action of the management as such amounts to unfair labour practice and victimization. It is contended that the mala fide of the management is evident from the fact that the said letter dated March 10, 2006 clearly states that the management, by dispensing with the services of these employees intends to recruit new employees through service providers and that is being done in the name of quality and efficiency of service at competitive market rates. It is further contended that the management action is mala fide also in view of earlier attempt made by it for the purpose in the name of V.S.S. And Golden Hand Shake Scheme which were subsequently withdrawn and abandoned. It has also been pleaded that the services of the existing employees are protected through the settlement arrived
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at between the respondent-management and Habib Bank Employees Federation, which is 'stated to. Be registered as industry-wise union. It was agreed under the settlement that all the rights and terms and conditions of Habib Bank employees shall be protected for a period of one year. 2. It is further contended that the impugned retrenchment order, dated 10-3-2006 was issued to be effective from the same date and simultaneously circular dated March 10, 2006 addressed to all Branch Managers was also issued to this effect. Besides publishing advertisement in various newspapers, it is contended that the aforesaid letter and the Circular contained the Management decision to pay ex gartia to the retrenched employees besides their legal dues per detail given thereunder. It is further contended that the respondent establishment subsequently issued letter dated 18-4-2006 under the caption, "revised payout sheets" stating that it had been agreed to allow additional payments in addition to benefits already announced vide the aforesaid circular letter, dated 10-3-2006 and the impugned order of the same date. 3. Ten further facts of the matter are that two cases were filed in the beginning on 10-3-2006 by Habib Bank Employees Federation, one registered vide No,7A(05) of 2006 at Islamabad and one registered as 4A(24) of 2006-Q at Quetta. In both the cases status quo orders were issued on the same date. These two cases were subsequently followed by two contempt petitions registered vide No,7(01) of 2006 and No,7(06) of 2006-Q in which notices were issued. In the meantime management of the respondent-establishment moved an application on 11-3-2006 in Case .No,7A(06) of 2006 under section 151 of C.P.C. For clarification and ante-date hearing of the case. After hearing the learned counsel for respondent-establishment in the matter so brought before this Bench it was directed that unless the stay application was argued and decided, the trade union would not pressurize the Management in any respect in the meantime. The learned counsel however, did not press for ante-date hearing of the case because the hearing on stay application was fixed for 15th March, 2005. The learned counsel however, stated that he had gone through the contents of the status quo order, dated 10-3-2006 and he was satisfied that the same was in accordance with the law and there was nothing wrong in the order. 4. Another petition under section 49(4)(e) of I.R.O. 2002 registered vide No,4A(04) of 2006 was filed on 13-3-2006 by one Chaudhry Abdul Khaliq Driver A.R.M. Retail, Regional Headquarter, H.B.L. Islamabad against the respondent-establishment. After hearing the learned counsel in this petition, pre-admission notice was issued to the other party. 5. Subsequently, an application under section 151, C.P.C. For consolidation of cases that were filed challenging retrenchment of employees of Habib Bank Limited was moved by the learned counsel for respondent on 13-3-2006, which was registered vide No,7A(07) of 2006 and fixed for hearing before the Honourable Chairman, N.I.R.C. On 20-3-2006. The Honourable Chairman after hearing the parties in the matter on the said date transferred the following cases to this Bench vide an order, dated 20-3-2006 in aforesaid Case No,7A(07) of 2006:- (1) 4A(17) of 2006-K, (2) 4A(24) of 2006-Q, (3) 7(06) of 2006-Q, (4) 7A(05) of 2006, (5) 4A(04) of 2006, (6) 7(01) of 2006, (7) 4A(29) of 2006-L. ' By the time the files of all these cases were completed during subsequent hearings on 27-3-2006, 3-4-2006, 8-4-2006, 24-4-2006, 5-5-2006, 6-5-2006 and 15-5-2006, on the request made by the parties on 20-5-2006 the following cases were dismissed as withdrawn:-- (1) 4A(17) of 2006-K, (2) 4A(24) of 2006-Q, (3) 7(06) of 2006-Q, (4) 7A(05) of 2005, (5) 7(01) of 2006 and (6) 4A(29) of 2006-L. 7. The Case No,7A(06) of 2006 which was filed for clarification on 11-3-2006 before this Bench became infructuous as the main Case 7A(05) of 2006 was dismissed as withdrawn. The same was also disposed of accordingly. The cases that remained pending for adjudication are those that are listed in the title of this order. Amongst these, the petition registered vide Case No,4A(14) of 2006 was filed on 7-6-2006 on behalf of 24 petitioners, in which pre-admission notice for reply of the
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respondent was issued. The learned counsel for respondent had already moved an application in four cases registered vide No,4A(04) of 2006, 4A(08) of 2006-K, 4A(09) of 2006 and 4A(10) of 2006 for dismissal of these cases/petitions. 8. In petitions registered vide No,4A(04) of 2006, 4A(08) of 2006-K, 4A(09) of 2006 and 4A(10) of 2006. Mr. Abdul Hafeez Amjad who has filed his power of attorney has argued the matter on behalf of petitioners whereas Mr. Azam Jan Zarkoon argued the matter in petitions registered vide No,4A(14) of 2006 and No,4A(30) of 2006. The learned counsel for respondent has prayed in the applications filed by him in these petitions to dismiss all these cases on the ground that the Habib Bank Employees Federation has entered into agreement with the management. After having gone through the reply of the learned counsel for the petitioners to these applications as well as written arguments of both the learned counsel in support of their respective contentions it was held that both the learned counsel had raised law points which needed consideration as the same had also direct bearing on the main cases. It was, therefore, directed that the applications so filed by the learned counsel for respondent will be disposed of along with main petitions and both the counsel were directed to conclude the arguments in the matter. 9. The learned counsel for the, petitioner Mr. Abdul Hafeez Amjad has argued that the petitioners in all different cases have approached the N.I.R.C. Seeking protection of their rights guaranteed and secured to them under the law. It has been prayed that the respondents be directed not to commit act of unfair labour practice and withdraw the advertisement dated 10-3-2006 and letters of retrenchment of the same slate. It is also prayed that the respondents be directed not to compel the petitioners to receive these letters forcibly. It is contended that the scope of the letter dated 10- 3-2006 is confined to retrenchment of the petitioners. This act on the part of the respondents is mala fide based on the act of unfair labour practice. It is contended that Annexures "B" and "B/1" appended to Petition No,7A(5) of 2006 are the documents whereby the respondent-management has invited applications for appointment of persons against various vacancies. It is contended that this act of the employer is sufficient to indicate mala fide on his part to change the terms and conditions of employment of the petitioners by converting their regular employment into contractual relationship. It is further contended that the cases filed vide Nos.7A(10) of 2005 and 4A(48) of 2005-L were on account of the action initiated by the respondents-management under the garb of V.S.S. Or Golden Hand Shake Scheme with threatening attitude to terminate, the services of those who would not opt for those schemes. It is stated that the N.I.R.C. Intervened in the matter and on the assurance of the respondent-management that no action will be taken against the workers in respect of their employment, the scheme was withdrawn. It is further argued that another unfair labour practice was caused by the management by way of non-payment of cash award to non-clerical staff with the intention to dismiss, discharge, remove and terminate them from service. It is further argued that the federation had submitted its charter of demands to the respondent-establishment on 29-12-2005 as a result of which the management announced another scheme which compelled the Federation to file a Petition bearing No,4A(219) of 2005-L. It is argued that this was also an act of victimization and unfair labour practice. It is also argued that another aspect of the matter is that the referendum proceedings were pending and during the pendency of referendum proceedings an adverse order was issued by the management, which is illegal and so is attracted by the provision of law to be termed as unfair labour practice. The learned counsel for the petitioners has also argued that it would need to be determined as to whether the action taken by the respondent-management falls within the purview of retrenchment or not. It is contended that the letter so issued by the management to retrench the services of the workmen is not attracted by the provisions of retrenchment of employees. It is also contended by the learned counsel that the petitions were before the Court on 10th March, 2005 and the Court had issued status quo order whereas the respondent-establishment has submitted postal receipts to
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the effect that orders were sent through registered post on 10-3-2006. It is contended that the perusal of postal receipt would disclose that this stance of the respondent-management was wrong. It is contended that the majority of receipts were pertaining to dates such as 11th, 14th and, other dates of March, 2006. It is contended that irrespective of all the dates it is to clarify that the respondent-management yet executed another agreement with the Federation on 18-4-2006 in continuation of earlier dated 10-3-2006. It is argued that even otherwise the act of the respondent- management dated 10-3-2006 could not be completed on the basis of continuation of letter dated 18-4-2006. It is argued that since action of the respondent-management is not in the purview of law and requires clarification, therefore, such action deserves to be set aside forthwith. 10. Mr. Azam Jan Zarkoon, learned counsel for the petitioners in cases registered vide No,4A(14) of 2006-Q and 4A(30) of 2006-Q has argued that the respondent has failed to produce any rule under which they have passed the retrenchment. It is contended that the order of retrenchment was not passed by the competent authority as the same are not valid in the eyes of law. It is contended that the respondent published the retrenchment order in newspaper, the question of the publication arises at the time when the retrenchment order is not served and returned back as such the retrenchment order is based on mala fide. It is further argued that the retrenchment order was passed without show-cause notice and reason was also not justified as such the termination order is illegal (Ref. PLC 1990 Labour 62). It is contended that the settlement was not in course of industrial dispute and copies of the same are mandatory to he sent to the Provincial Government as such the agreement between the Habib Bank Federation and the management is not a settlement. It is argued by the learned counsel that the order of this Commission was passed on 10-3-2006 and it is operative from the time of passing of the order and the departmental order is operative from the time of the communication (Ref, 2002 MLD 975). He argued that the respondent's order issued on the same day which is not possible to serve throughout country on the same day and service of the retrenchment notice is effective which can be proved through evidence. It is further argued that the status quo order was not recalled and the respondent also paid the salary for the month of March as such the petitioners are still in the service of the respondents (Ref.1999 SCMR 2215). It is further argued by the learned counsel for the petitioner that retrenchment was unfair labour practice under clauses (e), (f) and (g) of section 63(1) of I.R.O. 2002. 11. The learned counsel for the respondent Mr. Shahid Anwar. Bajwa in his arguments has drawn attention to the effect that the retrenchment of employees took place on 10-3-2006 and the retrenchment orders were served on the employees through three modes: (1) publication in English and Urdu newspapers (2) by dispatch through courier service and (3) personal service, where some received and the others refused to receive. He argued that service through post on date of dispatch is considered to be a valid service as held in cases reported in 2004 PLC 343, PLD 1981 SC 225, 2002 PLC (C.S.) 956. It is argued that retrenchment of employees has already taken effect before the grant of status quo order in Case No,4A(14) of 2006-Q filed at Quetta and Case No,4A(05) of 2006 filed at Islamabad by Habib Bank Employees Federation. He further argued that subsequently petitioner-federation after entering into an agreement with the management withdrew both these cases as well as Contempt Petitions vide No,7(06) of 2006-Q and 7(01) of 2006, wherein notices were issued, were . Consequently withdrawn and so the same were dismissed. The learned counsel has argued that the status of the matter is that with the retrenchment of these employees their relationship with the employing establishment has come to an end. It is further argued that it still remains to be determined what effect of withdrawal and agreement by the federation would have on these cases. It is contended that the petitioners can take one of. Two positions; either they are entitled to benefits and consequences of orders passed in cases filed by the federation or they are not so entitled. It was argued by the learned counsel
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that they could not claim that they were entitled to the benefits but not to the consequences. He argued that if they were entitled to the benefits i,e, the Federation filed on their behalf and whatever orders were passed must ensure to their benefits. He argued that in that case they must accept consequences also as priori. It was argued that since those cases had been withdrawn by the Federation on the basis of an agreement they could not go outside the agreement and maintain the present petition. The learned counsel further argued that if they claim that they are not bound by the decision and actions in those cases instituted by the federation, then there was no stay order as for as those persons were concerned. He contended that in that case the N.I.R.C. Must also hold that a trade union cannot institute proceedings before N.I.R.C. In respect of rights of workmen. He argued that from whatever angle the petition is looked at it would be concluded that it was not maintainable but was liable to be dismissed. Learned counsel substantiated his arguments on the basis that a former workman was not a workman for the purpose of definition of workman as given in the I.R.O. 2002. It is argued that the law is that a dismissed workman whose dismissal has not led to an industrial dispute or has not been in consequence of industrial dispute is not a workman for the purpose of any proceedings under the said Ordinance. He argued that where the Standing Orders Ordinance, 1968 is applicable a dismissed workman can maintain a grievance in respect of his dismissal in view of specific provision contained in Standing Order 12. He further argued that the petitioner being a retrenched person was no longer workman and so not entitled to maintain his grievance. In this regard learned counsel cited following case-law to substantiate his contentions: 1980 PLC 514, 1980 PLC 655, 1988 PLC 573, 1987 PLC 846, 1992 PLC 58, 1983 SCMR 769, 1994 SCMR 2213, 2001 PLC 589, 1985 PLC 1053, 1979 PLC 320, 1998 PLC 182, 1994 PLC 301, 1996 PLC 702, 1998 PLC 1, 1997 PLC 697 and 2006 PLC 597. 12. Further points with regard to these cases that were emphasized by the learned counsel for the respondent are that: civil petition cannot be maintained after removal from service and the remedy lies before Labour Court as held in cases reported at PLD 1976 Lah. 611, 1990 PLC 599, 1987 PLC 129, 1984 PLC 1645, .PLD 1986 Lah. 90, 1997 PLC 622, 1986 PLC 985, 1998 PLC 403, 2006 PLC 380 and 2006 PLC 404. The status quo granted by the court is status quo ante and so is not maintainable in the light of judgments passed in cases 1997 SCMR 1508, 1970 PLC 617 and 1970 SCMR 491. It was further argued that it was wrong to presume that the interim relief given by the court was the whole relief as interim relief could not be the whole relief as held in cases: AIR 1959 SC 1342, AIR 1961 SC 689, 1971 SCMR 569, 1998 SCMR 68 and 1997 SCMR 1508. 13. The learned counsel argued that none of the petitioners anywhere in any of the petitions has stated as to which was his trade union activities for which he has been retrenched, victimized or otherwise punished. He argued that a mere bald statement that he has been victimized for trade union activities is not enough. In this regard he relied on judgments reported at 2003 PLC 244, 2004 PLC 38. He further argued that as held in number of cases including PLD. 1999 SC 990 and AIR 1958 SC 1012 etc. Retrenchment is a right of the management and so is not punishment within the meaning of judgment reported at PLD 1965 SC 420. 14. The learned counsel further argued that the retrenchment has taken effect by decision of the Board of Directors which passed a resolution and copy whereof has been provided and appended to his written arguments as Annexure "A" therefore, retrenchment was made after due consideration, he further stated. It was contended that retrenchment was affected all over the country on one day i,e, on the morning hours 10-3-2006. The reason for doing so on the same day and through different modes was that there were more than 2300 employees destined for retrenchment. He argued that the legal requirement under the Standing Order 13 of Standing Orders Ordinance, 1968 i,e, that principle of last-in-first-go be scrupulously followed; no exception and no exemption. It was further contended that since the employees were spread over 1400
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locations, it could not be possible to chronologically decide and serve these letters of retrenchment at one place and then at the second and so on. If it was done, he argued, it would have taken years to complete process. It was contended that the only available recourse to do so was to do it on the same day and at the same time. He argued that the management was fully cognizant of that there would be an uncontrollable disruption in the working of organization and it would also endanger the security of public money in the Bank if there are number of employees whq knew that they were about to be retrenched but who had not been separated from duties. He stated that the management thus, wanted to do everything at one time so that it does not face with a situation that while some have been removed, the others remain because of prohibitory order. He argued that in view of the fact that the Bank deals with money the management has to be extra cautious. He further contended in this regard that the Bank being one of the most geographically dispersed organizations demanded that action be coordinated all over the country. He argued that it is misnomer to say that the action was taken in one day. He argue that thorough preparations were made and detailed analyses were conducted and thereafter a detailed note was prepared by H.R. And O.D. Group which was placed before the Board of Directors in its meeting on 18-2-2006 and after their approval the retrenchment was effected after completing the process by the time the letter of retrenchment was issued. 15. On the point relating to the consultation with the C.B.A. Union, the learned counsel argued that under section 2(xvi) of I.R.O. a dichotomy has been made between individual grievances and- industrial disputes. It was contended that what is individual grievance is not industrial dispute and what is industrial dispute cannot be individual grievance. He further argued that under section 20(13)(a) where right to undertake collective bargaining has been conferred on C.B.A. It has been specifically provided that enforcement of individual rights are outside the pail of industrial dispute. He argued that the retrenchment is .a guaranteed right of employer under . Standing Order 13 and it is guaranteed to the worker that he shall not be illegally retrenched (Standing Order 12(3). He stated that therefore, there could not be any collective bargaining on retrenchment. He further argued that under section 50(3) a petition before N.I.R.C.. Could be maintained only if there were allegations of unfair labour practice and there was a guaranteed right i,e, non-collective bargain able situation. On the point pertaining to referendum the learned counsel clarified that referendum was ordered on 31-3-2006: whereas retrenchment took place on 10-3-2006, which has taken place on a uniform basis. He further argued that permission of Registrar is required under section 20(15) for retrenching office-bearers of a contestant trade union. He contended. That implication of the law is clear as non office-bearer can be retrenched even during referendum proceedings and so cannot be treated as an act of unfair labour practice. He argued that none of the petitioners has claimed that he is an office-bearer of a contestant union. He stated that in any case since the referendum proceedings started on 31-3-2006 factum of referendum was not attracted to the case in hand. ' With regard to the point 'why retrenchment has been made the learned counsel argued that reasons have been stated in the retrenchment circular which emphasize on economy, core activity of the Bank, specialization focus and utilization of management time. He argued that compensation structure in respect of non-core activity is out of lying with prevailing market rates. He contended that the document present to the Board of Directors indicated that retrenchment was brought about a direct saving of Rs,403,000,000 per annum. He further argued that business of the Bank is banking and, therefore, whatever is involved in banking that is development in delivery of service to the customer of the bank is core activity. He argued that everything else is non-core. He further argued that it is thus, not business of the Bank to tend to gardens, 'Mali's work is not a core banking activity. Same is position of drivers, security guards, tea boys, photo copiers etc. He argued that security is a specialized function and for that purpose security companies are licensed
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by the Government. He argued that it is business of the Bank to train security guards and so the same is true of fleet maintenance, catering etc. He also argued that management wanted to concentrate on delivery of services to the customers rather than be involved in the management of serving of tea, tending of gardens or security detailing etc. He contended that the time is single most precious asset. He argued that the management time was more so than any other time. He argued that time should be spent on developing…
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