PLJ 2013 Tr.C. (NIRC) 100
[National Industrial Relations Commission,
[National Industrial Relations Commission,
Present: Bashir Ahmad Memon, Member
(PVT.) LTD., PAKISTAN through its Factory Manager--Petitioner KARACHI
PHARMATEC WORKERS WELFARE UNION, (CBA) through its General Secretary & 5 others--Respondents
No. 4A(172) of 2012-K & 24(173) of 2012-K, decided on 21.2.2013.
NIRC (P&F) Regulations, 1973--
----Regul. 32(2)(0)--Industrial Relations Act, 2012, S. 54(e)--Charter of demand--Trans-provincial organization--Allegations of frequently written to harass management about implementation of expired agreement and settlement--Charter of demands to pressurize management to withdraw show-cause notice--Adopting negative attitude in order to compel management to accept illegal demands--Validity--Management shall transfer entire factory because every unreasonable and illegal demands had been made and it is why talks on these demands had not been completed during last one year--No doubt a CBA had right to submit charter of demands but demands should be reasonable, feasible and practicable--Charter of demands speaks about attitude towards the management, therefore, worker advised to come forward with genuine practicable demands, which would be acceptable fairly to management--Balance of convenience was in favour of management and they would suffer irreparable loss and injury it stay order was not confirmed--Petitioner had made out a case of unfair labour practice against worker.
[Pp. 104 & 105] A, B, C & D
Mr. S.M. Iqbal, Advocate for Petitioner.
Mr. Khalil-ur-Rehman, Representative for Respondents.
Date of hearing: 21.2.2013.
This is application under Regulation 32(2)(c) of NIRC(P&F) Regulations, 1973 filed by the petitioner alongwith petition under Section 54(e) of the IRA, 2012.
2. The brief facts as stated in the petition are that the petitioner company is a pharmaceutical manufacturing industry having its Regional/Branch offices at
Multan, Rawalpindi and , in more than one province therefore it is a trans-provincial organization. It has been stated that Respondent No. 1 union is provincially registered trade union and also having CBA certificate issued by Provincial Registrar of Trade Unions, Sindh and it is not an industry-wise trade union in view of the petitioner company. The petitioner company showing its status as trans-provincial organization has produced a copy of an order dated 28.09.2011 passed by PunjabLabour Court No. 9, Peshawar in application filed by an employee of the Multan Regional Office (Annex.X). It is stated that Respondent No. 2 is Ex-worker of the company and his application against his removal Bearing No. 102/2009 under Section 41 of the IRA, 2008 is pending in the IIIrd Sindh Labour Court, Karachi and the Respondents No. 3 to 6 are office-bearers of the union and also employed in the company. It has been stated that inspite of the fact that the Respondent No. 1 union being an illegal body, the company has been compelled to deal with it and had entered into various settlements/agreements only in order to maintain industrial peace and harmony but very recently the situation has been drastically changed and various cases have been filed against the petitioner management, industrial relations have been deliberately spoiled and senseless letters making false allegations are frequently written to harass the management and false allegations are being made about implementation of old previous expired agreements and settlements. The petitioner has produced certain letters as Annex.A,B,C,D, E, F, G and H. It has been stated that the union gave its charter of demands on 01-01-2012 (Annex.I) and subsequently the notice of strike dated 16-07-2012 (Annex.H) and thereafter the conciliation proceedings are continuing but the union always kept on raising demands other and above its charter of demands to pressurize the management to accept their demands. It has been further stated that under the same tactics of pressurization, coercion and intimidation Respondent No. 3 wrote a letter dated 12-07-2012 to the SHO, SITE, making false allegations Annex.K) with copies to other authorities, which is an attempt to pressurize and intimidate the officers of the company to accept demands of the union to malign and spoil good-will and public image of the petitioner company. Accordingly show cause notice dated 18-07-2012 (Annex.L) has been issued to Respondent No. 3. The reply of Respondent No. 3 dated 20-07-2012 (Annex. M) was not found satisfactory, therefore an inquiry letter dated 06-08-2012 (Annex.N) has been issued and on the request of Respondent No. 3 the inquiry date was extended (Annex.O). It has been stated that planned campaign on false allegations against the Enquiry Officer has been started taking false objections against him and Respondents No. 2 to 6 in various meetings while attending the conciliation meeting repeatedly demanded the acceptance of demands of the union and to withdraw the show cause notice issued to Respondent No. 3 and have threatened to repeat the acts of unfair labour practice and strike will be staged to compel the management. It has been stated that the petitioner management also apprehend that acts of unfair labour practice would be resorted by the respondents by not allowing the management to complete the domestic inquiry and disciplinary proceedings against Respondent No. 3 as per law, hence the petitioner management has prayed for declaring the registration/CBA certificates issued by learned RTU, Sindh as illegal and in violation of the law as only industry-wise trade union is to be formed having workers employed in trans-provincial establishment. It is further prayed to hold and declare the conduct of Respondents No. 2 to 6 in violation of provisions of IRA, 2008 and IRA, 2012 and illegal and constitutes acts of unfair labour practice. It is also prayed that using pressure, coercion, intimidation to compel the petitioner management to accept demands of the union and to withdraw the show cause notice dated 18-07-2012 issued to Respondent No. 3 and not allowing to complete the domestic inquiry as per law, are illegal and in violation of provisions of IRA, 2008 and IRA, 2012 and The Industrial & Commercial Employment (Standing Orders) Ordinance, 1968. Multan
3. On admitting the petition ad-interim stay order was grated in favour of the petitioner and respondents were restrained from coercing, intimating, pressure, compelling the petitioner to accept their demands to withdraw the show cause notice dated 18-07-2012 issued to Respondent No. 3 and not allowing to complete the domestic inquiry against him and using threats of staging sudden strike if their demands are not accepted and to conduct their affairs in a manner calculated to avoid occurrence of unfair labour practice.
4. Respondents were served and one Muhammad Ejaz Karim has filed his comments and counter affidavit, whereas rest of the respondents have not filed their comments etc.
5. I have heard arguments of Mr. S.M. Iqbal, learned counsel appearing on behalf of petitioner as well as Mr. Khalil-ur-Rehman, Labour Representative appearing on behalf of the respondents.
6. Mr. S.M. Iqbal, learned counsel appearing for the petitioner argued that he has produced the documentary evidence as Annex.G to Annex.N showing that the petitioner management is doing its business legally as per provisions of IRA, 2008 and IRA, 2012 and it has branches at Multan, Peshawar and Rawapindi and thus it is a trans-provincial organization and in support of his such contention he has produced copy of order dated 28-09-2011 passed by learned Punjab Labour Court, Multan as Annex.X. It is argued that the Respondent No. 1, which is an illegal body because it is not registered as an industry-wise trade union has not been issued CBA certificate by learned Registrar, NIRC, as such it has no character of representing the workers in the petitioner management. However since it was CBA before promulgation of IRA, 2012 and it has also signed different settlement with the management, therefore the petitioner only in order keep industrial peace and harmony is allowing Respondent No. 1 union to represent the workers. It is argued that on the charter of demands dated 01-01-2012 bilateral negotiations are pending before Conciliator but during the meetings before Conciliator, the respondent union is always adopting the negative attitude in order to compel the petitioner management to accept their illegal demands. It is also argued that in order to coerce, pressurize and intimidate the petitioner management, the Respondent No. 3 has written a latter to the SHO, SITE, Karachi dated 12-07-2012 that he has received a call on his mobile phone where some one speaking in Pashto has threatened him to leave the Presidentship of the union and also to arrange for Rs. 1 lac failing which he will face dire consequences. It was argued that in the entire officials of the management no one is Pashto speaking but in his application to the SHO allegations have been leveled against the management and M.D. Dr. Shahida Qaiser, I.R Manager Syed Adnan Ali Trimizi, Factory Manager S.M.Abu Saghir, G.M.Finance Farrukh Hussain and HR Officer Khurshid Alam have been held responsible of the threats issued to him. It is argued that it is clear case of pressurization, coercion and intimidation against the management officials only to accept the illegal demands as one of the illegal demand raised by the respondents is to withdraw show cause notice and inquiry proceedings against Ameer Rawan, Respondent No. 3. It is further contended that during the pendency of conciliation proceedings before the Conciliator threats were issued to the management, it is why the petitioner has filed the present petition before this Bench of Commission for their safeguard and unless the respondents are restrained from committing unfair labour practice, the officials of the management will suffer irreparable loss and injury.
7. On the other hand Mr. Khalil-ur-Rehman, Labour, Representative appearing on behalf of the respondents while arguing the case contended that a case for an amount of Rs.2 millions has been filed against the President of the union and charter of demands is pending before Conciliator and IRA, 2012 provides that during the pendency of charter of demands, there shall be no termination or removal of any office-bearer of the union. It is argued that the petitioner has failed to produce any documentary proof that it has registration of firm in other provinces of the country, therefore it cannot raise objection upon the status of Respondent No. 1 union, which is registered with RTU, Sindh and is legally constituted body of the workers employed in petitioner establishment.
8. I have considered the arguments and have gone through the material placed on record.
9. No doubt the Respondent No. 1 union has submitted charter of demands on 01-01-2012 and admittedly the conciliation talks are going on and since the talks have not been completed/finalized, it is why the petitioner management has approached this Bench of Commission for safeguard of the officials of the management
10. It will be worth to mention here that I have perused the charter of demands submitted by respondent union (Annex.I) and am compelled to say that it would have been better than instead of raising 60 demands the respondent union should have only raised one demand that the management shall transfer the entire factory in the name of Respondent No. 1 union because very unreasonable and illegal demands have been made and it is why the talks on these demands have not been completed during the last one year.
11. No doubt a CBA has right to submit charter of demands but the demands should be reasonable, feasible and practicable.
12. So far the allegation that a case of Rs.2 millions has been filed against President of the union, no any documentary proof has been produced. It was just alleged to impress the Court for seeking sympathy. The charter of demands speaks about the attitude of the respondents towards the management, therefore Respondent No. 1 is advised to come forward with genuine and practicable demands, which shall be acceptable fairly to the management.
In view of above facts and circumstances I am of the view that the petitioner has made out a case of unfair labour practice against the respondents. The balance of convenience is in favour of petitioner management and they will suffer irreparable loss and injury it the stay order is not confirmed. Accordingly while confirming the interim stay order dated 13-08-2011 granted by this Bench of Commission I dispose of application under Regulation 32(2)(C) of NIRC (P&F) Regulations, 1973. However the Conciliator is required to complete the conciliation proceedings as early as possible under intimation to this Bench of Commission. Put off to 06-03-2013 for filing affidavit-in-evidence by the petitioner.
(R.A.) Application disposed of