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Petitioner: Syed IKRAM MUSTAFA BOKHARI, SENIOR SUB-EDITOR ASSAS PUBLICATION and 44 others VS Respondent: ASSAS PUBLICATIONS, through Editor-in-Chief and 2 others
Court Name: National Industrial Relations Commission Judge(s): Qazi Ahmed Saeed Title:Syed IKRAM MUSTAFA BOKHARI, SENIOR SUB-EDITOR ASSAS PUBLICATION and
44 others vs ASSAS PUBLICATIONS, through Editor-in-Chief and 2 others Case No.: Case No,4A(44) of 1999 Date of Judgment:2003-06-20 Reported As: 2006 PLC 513 Result: Petition accepted Judgment ORDER ' QAZI AHMED SAEED, MEMBER,---This petition was filed by Syed Ikram Mustafa Bukhari, Senior Sub- Editor of Assas Publication Murree Road, Rawalpindi and others including Assas Publication Employees Union Rawalpindi through its President Syed Ikram Mustafa Bukhari cited as petitioner No,1 on 17-2-1999. The petitioners at Sl. Nos.1 to 44 claim that they are permanent employees of Assas Publication. It is prayed that the respondents be directed not to remove/terminate/dismiss/discharge or otherwise punish the petitioners from service and not to commit unfair labour practice as defined under section 15 of the I.R.O. 2. The main allegation is that the respondents are mentally against the trade union activities of the petitioners. It is further alleged that even during pendency of the registration application of the union, the office-bearers were threatened by the respondents management to withdraw the registration application, failing which they should prepare themselves for termination and other punishments. Apprehending that the threat would be translated into action, Petition No,4A(139)98 along with a stay application was filed in which the then learned Member, while issuing directions prohibited the respondents from committing acts of unfair labour practice, however, on 4-2-1999, the counsel for the respondents appeared in the said case and made the following statement:-- "We have neither committed nor intended to 'commit any unfair labour practice. This petition was on the apprehension of commission of unfair labour practice. The respondents shall not remove, transfer, terminate the petitioners on the basis of unfair labour practice as defined under section 15 of the I.R.O. The matter has been patched up between the parties amicably so far as the question raised in the petition is concerned."
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' Upon the abovementioned undertaking, the case was withdrawn. 3. It was next alleged that the office-bearers of the union served a charter of demands as laid down under section 26 of the I.R.O., 1969 but the respondents management did not negotiate for settlement with the office-bearers of the union. While on the other hand during pendency of the aforementioned industrial dispute, the respondent No,1 issued charge sheets to the office-bearers of the union on the basis of false allegations. However, ultimately the local administration intervened and the Deputy Commissioner, Rawalpindi, deputed Ch. Arshad Mehmood, Magistrate to conduct an inquiry regarding the situation, who after recording statements of the office-bearers of the union fixed 24th February, 1999 for appearance of the respondents. It was next alleged that the respondent are not implementing the labour laws and the Labour Department had filed three challans against the respondents management in the competent Court of law for violation of law and for not issuing the appointment letter, non-payment of wages in time and non-payment of dearness allowance to the workers and as a result the respondents were awarded punishment in the shape of fine. The petitioners further alleged that in spite of the fact that the respondent No,1 undertaken that they would not terminate services of the office-bearers of the union and would not commit any act of unfair labour practice, the Management in order to crush the union had decided to remove most of the employees in the shape of retrenchment, ordered removal of more than 60 employees of the establishment on the false reason that due to financial problem they have closed two editions of the newspaper. It was alleged that the retrenchment was mala fide. 4. This petition was accompanied by an application for interim relief under Regulation 32(2) of the N.I.R.C. (Procedure and Functions) Regulations, 1973. The then learned Member vide order dated 18- 2-1999 issued ad interim order directing the respondents not to remove, terminate, dismiss, discharge or otherwise punish the petitioners till further order. The respondents were also directed to allow the petitioners to join their respective duties. 5. On 20-2-1999, some petitioners including petitioner No .1, have moved an application under section 151, C.P.C. With the following prayer:-- "The DSP new Town Circle Rawalpindi be directed to depute some police party to save their lives and asked the respondents to implement the orders of this Court by way of allowing them duties and if some Gundas are that the gate or inside the office, be arrested and the respondents be also asked to remain in the norms of law." 6. It was also alleged. That on 18-2-1999 a constable went for service of the orders upon the respondents, but he was not allowed to enter the office and was informed at the gate that the respondents are not available in the office. It was further alleged that all the petitioners went to the office about 6-00 p.m. On 18-2-1999 to join their duties under the orders of the Court, but three unknown persons stopped them at the Gate. They caught the petitioner No,1 Syed Ikram Mustafa Bukhari and put a pistol at his forehead and told him be off from there and when they denied, a man standing at the roof of the office asked to bring the petitioner No, 1 Syed Ghulam Mustafa Bukhari in an open place so that he could shoot him. He also fired in the air. The said application was placed before the then learned Member on 20-2-1999, who passed the following order:-- "In the interest of justice and keeping in view the pendency of the case and injunctive order passed by this Commission, the DSP New Town Circle, Rawalpindi is directed to depute a police party to safeguard the lives of the petitioner and to provide protection to go inside the premises of respondent establishment for joining their duties. The respondents are further directed to allow the petitioners to join their respective duties and obey the orders passed by this Bench of the Commission dated 18-2-1999 which is clear in nature." "Mr. Iftikhar Adil, Editor-in-Chief respondent No,1 is directed to appear in person on the next date before this Bench and submit compliance report. To come up on 6-3-1999".
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7. The respondents while filing their written statement and reply to the stay application have resisted and vehemently opposed the petition by raising inter alia certain legal objections regarding maintainability of the petition. On merits the respondents also controverted the allegations made by the petitioners and contended that the petitioners had no legal cause of action because due to lack of working capital the respondents management was constrained to discontinue the Kashmir and Sarhad/Frontier editions and due to the said reasons the staff of the respondents establishment have become rendered surplus, and thus the respondents have no other alternate but to retrench some of the workers and by doing so codel formalities as laid down under Standing Order 13 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, were strictly adhered to and fiscal benefit were also paid to them. It was next contended that some of the petitioners accepted the orders of their retrenchment and have also received substantial amount towards the fiscal benefits. As regards the allegation of unfair labour practice it was contended that the petitioners themselves were indulging in the unlawful activities and committed unfair labour practice as envisaged under section 16 of the I.R.O., 1969. It was next contended that the petitioners are responsible for leaking out secrecy of the respondent establishment. It was further contended that the respondents have not violated any provisions of the Wage Board Award. This Commission have no jurisdiction to adjudicate upon the matter as jurisdiction for implementation of the decision of the Wage Board Award rests with the Implementation Tribunal for Newspaper Employees under section 2-A of the Newspaper Employees (Conditions of Service) Act, 1973. 8. On facts it was contended that the petitioners Nos.1, 5, 6, 9, 11, 19, 27, 30, 31, 32, 34 and 35 are no more in employment of the respondents establishment and many of them have already accepted the order of their termination and have also received their fiscal benefits. As regards the order passed in Case No,4A(139)/98 it was contended that the allegations were false as the respondents have not committed any act of unfair labour practice. It was also contended that the management had initiated disciplinary proceedings against the petitioners Nos.1, 27 and 29 on charges of misconduct under the enabling provisions of the Standing Order on 6-10-1998 which was prior to the service of alleged charter of demands, submitted to the management on 18-11- 1998. It was further contended that the office-bearers of the petitioner union abandoned the charter of demand during the negotiations with the management and with mutual understanding, fiscal benefits were enhanced with effect from 1-12-1998 and as a gesture of goodwill no further action on the charges which were proved against the. Delinquents in the enquiry proceedings, was taken. Against the petitioners Nos. 1, 27 and 29. As regards the allegations of unfair labour practice, it was contended by the respondents that they have not contravened any provision of section 15 of I.R.O., 1969 but due to lack of working-capital, the respondents management were constrained to discontinue the "Kashmir and Sarhad" editions of Daily-Assas Rawalpindi and due to the aforesaid reason the staff employed in the respondents establishment had become surplus and accordingly they were retrenched. 9. The case was fixed for arguments on stay application on 14-4-1999. The then learned Member after hearing both the Parties disposed of the stay application with the following observations:-- "In view of the above situation I am of the view that the above factual controversy can only be resolved by leading evidence by both the parties. Let this matter be fixed for evidence on 1-6-1999. Status quo already granted shall ,continue." 10. On 21-5-1999 affidavit in evidence on behalf of the petitioners was filed. But so many adjournments were sought by learned counsel for the respondents and the cross-examination could not take place. However, ultimately on 27-10-1999 learned counsel for the respondents, cross-examined the petitioners witness namely Syed Ikram Mustafa Bukhari and the case was fixed for filing affidavit in evidence by the respondents. A perusal of the record shows that the
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respondents sought so many adjournments and the case cannot proceed further. Ultimately on 28-3-2000 the then learned Member Mr. Allauddin Qureshi using his powers under Regulation 34 of the N.I.R.C. (Procedure and Functions) Regulations, 1973, to curtail the evidence of the parties for expeditious disposal of the case in light of the material available on record, closed the evidence of the respondents as the respondents failed to produce themselves in support of their contentions. On 4-4-2000 counsel for the respondents submitted an application for recalling the order dated 28-3-2000. After hearing arguments of learned counsel for both the parties, the application dated 30-3-2000 filed by the respondents on 4-4-2000 for recalling order dated 28-3-2000 was dismissed vide order dated 5-4-2000 and the case was fixed for arguments on 11-4-2000. Agitating against the orders dated 28-3-2000 and 5-4-2000 an Appear bearing No, 12(30)/2000 was filed by the respondents management. During hearing of the appeal on 9-1-2001 it was agreed that the impugned orders be set aside and one more opportunity to produce their witness for cross-examination be given to the respondents. Accordingly the respondents filed affidavit in evidence of their witness Mt. Sahir-ur-Rehman (General Manager of the respondent management) on 21-1-2001. Record further reveals that copy of the affidavit given to the petitioners did not enclose the annexures and thus some adjournments were also given for supply of the same to the petitioners. However on 4-2-2003, the respondent witness was cross-examined by the learned counsel for the petitioner. 11. In his affidavit Syed Ikram Mustafa Bukhari (petitioner No,1) has supported the contention of the petitioner and asserted that the deponent, Iqbal Mustafa Bokhari, Muhammad Javed-ul-Hassan, Abdul Hafeez Jadoon, Imran Hussain, Muhammad Iqbal Malik, Najmul Saqib, Farhat Abbas, Zulliqar Ali, Iftikhar Ahmed, Muhammad Saeed and Asim Salr were performing their duties upto 17-2-1999 and have marked their attendance in the attendance register, copy of which was filed with the affidavit as Exh.P.1 and that the said petitioners along with others have not been removed from service on 15-2-1999 as alleged by the respondents. It was denied that the petitioners along with deponent Syed Ikram Mustafa Bokhari were removed from service vide termination letters dated 18-2-1999. It was also denied that they have received their benefits. The deponent corroborated the version of the petitioners that the respondents arc mentally against the concept of trade unionism and even no 'appointment letters were issued to the employees in compliance with the decision of the Wage Award and that is why the petitioners had decided to form their trade union. The documents for registration of the said union was filed in the office of RTU in the month of June 1998 and subsequently it was registered in the name of "Assas Publications Employees Union, Rawalpindi". C.B.A. Certificate was also issued in favour of the said union. It was further asserted that during pendency of the registration application, the respondents threatened the office- bearers of the said union to prepare themselves for termination and other action and therefore the Office-bearers of the union filed a petition under section 22-A(8)(g) of the I.R.O., 1969 (bearing No,4A(139)/98). It was also alleged that the respondents management became annoyed with the office-bearers after registration of their union and in order to create harassment, and to bring the union under pressure, salaries of the employees were also, withheld. However, salaries of the staff were released under the orders of the then learned Member, Mr. Abdul Rashid Khan. It is further asserted that the management to bribe the members and office-bearers of the union have given an offer of increase in pay to the petitioner Abdul Hafeez Jadoon that his pay will be increased and no action will be taken against him, if he leaves the union, which offer was not accepted by him. However, on 14-12-1999 the learned counsel for the respondents appeared in the aforesaid Petition (No,4A(139)/98) and gave an undertaking that the respondents will not commit any act of unfair labour practice. It was further asserted that a charter of demand was served upon the respondents management but the respondents did not negotiate the said charter of demand and on the contrary, the petitioners were served with the charge sheets on the 'basis of false allegations.
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However, on the intervention of local administration an inquiry was conducted in the matter. To show that highhandedness of the respondents, it was asserted that the _respondent management did not comply with the provisions of the labour laws and the Directorate of Labour had to file prosecution before the Court of law. In his affidavit in evidence Syed Ikram Mustafa Bukhari has also denied all the allegations made by the management in their written statement and it was asserted that no edition has been closed and the Newspaper "Assas" is still being published in the same quantity as was before. It was next asserted that the management has started colour pages and also extended its pages and now they are publishing 10 pages instead of 8 pages of the Newspaper i,e, Assas, with the same price. This shows that the management has no financial problems and on the contrary they are earning profit. It is further asserted that no Edition has been closed and the newspaper is being published for Kashmir and Sarhad. It is further alleged that the respondents have violated the principle of last come first go, as junior to the deponent and other petitioners are still working in the establishment. It is also asserted that the deponent and other petitioner were employed for "Assas" and were working for Asas Publication. Finally it was also contended that no department or sections of Assas Publication has been closed and that all the office-bearers of the union are out of service in spite of the fact that a stay order was issued in their favour. The respondents have neither implemented the said order of the Commission nor they have paid salaries to the petitioners. The respondents have not abolished any post so far and on the contrary they have advertised for recruitment of the staff and have appointed some more officials. 12. Learned counsel for the respondents Syed Kazim Hussain Kazmi in cross-examination of the petitioner witness, has suggested that edition of Kashmir and Frontier are not being published, but this assertion was denied by the deponent. He admitted that at the time of termination from service he was Incharge of Frontier Edition. He also admitted that 65 workers were removed from service to lack of working capital. Voluntarily stated that these workers were not removed for lack of working capital. However, he admitted that the Editor in Chief had informed that there is lack of working capital and hence with effect from 17-12-1999 Edition of Sarhad and Kashmir arc being discontinued. He further admitted that the petitioner Najmus Saqib was a trainee and not a worker. He also admitted that his brother has accepted his termination dues from the management. In answer to a Court question, the witness stated that the words "lack of working capital" means lack of finance. He also admitted that he is jobless and that the management is not willing to keep him in service although an order of interim relief has been granted in his favour. He admitted that out of 35 petitioners many of them have accepted their retrenchment and have received their due emoluments. 13. On behalf of the respondents, Mr. Shair-ur-Rehman, General Manager has filed his affidavit in evidence along with its annexures (pages 126 to 128 and 211 to 238 of the file). In his affidavit the witness asserted that he is well-conversant with the facts of the case and deposed that the petitioners were retrenched along with other workers due to financial constraints and non- availability of the required working-capital, which compelled the respondent management to discontinue publishing of two dak-editions of the Daily Assas pertaining to the Edition of Kashmir and Sarhad with effect from 7th February, 1999. This fact was communicated to the office-bearers of the CBA Union. He further asserted the retrenchment was effected in accordance with the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 on the basis of last come first go. It is further asserted that about 62 workers accepted the order of their retrenchment. However, some of the petitioners did not receive the termination letters, therefore, the same were sent at their residential address through registered A/D along with cheques of their emoluments. It is further asserted that the petition is misconceived as termination of the petitioners does not attribute to the unfair labour practice as alleged in the petition. He further asserted that
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the present petitioners have earlier moved a petition under section 22-A(8)(g) of the I.R.O., bearing No,4A(139)/98 which was on the basis of apprehension but the same was withdrawn. It is further asserted that the petitioners were trying to pressurize the respondents management and usually took the law in their hands. It is further asserted that the petitioners had a clear liaision with the rival Newspapers and secrecy of the respondents establishment was repeatedly leaked out. However, in order to maintain peace, tranquillity and industrial relations between the parties, the management had taken a lenient view but the petitioners remained in the habit of blowing hot and cold in the same breath, initially they agreed in principle to accept their lawful termination order, but later on they without any lawful justification created disturbance during working hours, upon which they were reminded that such acts are illegal, but they did not care and threatened the management with dire consequences and took the valuable record along with the attendance- registers which was later on forged by them to try to show that they were attending their duties upto 17th February, 1999. The said illegal acts of the petitioners were brought to the notice of the Local Police. Regarding the petitioner No,28 it was asserted that being a trainee he was never in the employment of the respondents establishment, and he has been incorrectly shown to be on the regular roll of the establishment. Lastly it was contended that the petition is against law and facts and proper remedy for the petitioners is to invoke jurisdiction of the Implementation Tribunal of Newspaper Employees. 14. Witness for the respondents was cross-examined by the learned counsel for the petitioners. The witness admitted that all the petitioners were employed in the establishment of Assas, Rawalpindi. The witness also admitted that the petitioners were retrenched on the ground that they were working in the "Sarhad and Kashmir Edition" as the same has been closed. He further admitted that there was no order in writing for transfer of the petitioners to work in "Sarhad and Kashmir Edition". It was also admitted that no agreement in writing was arrived at between the petitioners and the respondents management for retrenchment of the workers and the office-bearers were called, orally and no notice in writing was given for the meeting. He also admitted that previously Malik Masood Group Manager filed his affidavits. Regarding the statement of account, the witness stated that the respondent have submitted statement showing loss which was prepared under his supervision and also under the supervision of Malik Masood. He admitted that the petitioners have filed Case No,4A(139)/98 in this Commission, apprehending that due to their trade union activities they will be victimized however, he stated that he did not know that on 4-2-1999 the Department has given an undertaking in the aforesaid case that the respondents will not terminate or remove the office-bearers and members of the petitioner union and due to this undertaking the said case was withdrawn. He admitted that charter of demand was served under section 26 of the I.R.O., 1969 which was negotiated at initial stage. Regarding the suggestion that the petitioners were charge- sheeted due to the reasons that they had raised an industrial dispute, the witness stated that the suggestion is incorrect, however, he admitted that after serving of charter of demand, the local administration interfered in the matter and the Deputy Commissioner had appointed a Magistrate for holding an inquiry into the matter. However, he denied that whether the Magistrate had challaned the respondents for violation of the provisions of Standing Orders Ordinance and the Factory Act. He also denied that the Labour Court has summoned the respondents in connection with the said Challan. In reply to another question the witness stated that the petitioners and other employees were retrenched from service on 7-2-1999 and 15-2-1999. He stated that it is not in his knowledge that Iqbal Mustafa Bokhari Muhammad Javed-ul-Hassan Bhatti, Abdul Hafeez, Imran Hussain, Muhammad Iqbal Malik, Najamul Saqib, Farhat Abbas Turabi, Zulfiqar Ali, Iftikhar Ahmed, Muhammad Saeed and Asim Saleem have performed their duties till 17-2-1999. To a question the witness admitted that the termination letter dated 15-2-1999 has been dispatched through registered post on 18-2-1999. Ikram Mustafa, Muhammad Saeed, Zulfiqar and Farhat Abbas Turabi
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have not taken full and final settlement from the management while the remaining petitioners have taken the same. The witness also admitted that it was correct that after termination of the petitioners "Sarhad and Kashmir Editions" was restarted after about one and a half year. He admitted that after termination of the petitioners, the management has given advertisement for appointment of new employees. He also admitted that after termination of the petitioners, the Newspaper was published with 10 pages instead of 8…
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