2014 P L C 3

[National Industrial Relations Commission]

Before Bashir Ahmed Memon, Member

AWAMI LABOUR UNION OF COLLATERAL SERVICES LTD. (CBA)

Versus

Messrs HABIB BANK LIMITED and 2 others

No.4A(31) of 2011-K/24(36) of 2011, decided on 18th May, 2011.

Industrial Relations Act (IV of 2008)---

----Ss. 25(8)(g) & 42---National Industrial Relations Commission

(Procedure and Functions) Regulations, 1973, Regln.32(2)(c)---Unfair
labor practice by the employers, petition against---Stay order, grant of---
Petitioner, was industry-wise Trade Union, and was Collective Bargaining
Agent in respect of Establishment---Thousands of persons had joined the
petitioner union and had obtained its membership, and presently 511
employees of another establishment, were members of the petitioner
union---Said one Establishment had retrenched the employees---
Petitioner union served notice upon employer in respect of charter of
demands---Employer neither resolved the industrial dispute nor
responded the same positively---Petitioner union, alleged that
Establishment started harassments, victimization against the office
bearers and members of the petitioner union due to their trade union
activities; and the petitioner union filed petition under S.25(8)(g) of
Industrial Relations Act, 2008 along with petition for interim stay order
which was granted to the petitioner other establishments denied the
allegations by the petitioner union that those were sister concerns of one
Establishment---Held, petitioner union, being registered and certified in
respect of one employer/establishment, legally could not make members
or represent the workers employed in other establishments, which were
separate and independent companies---No provision of law existed in
Industrial Relations Act, 2008 that a union could extend its membership
to another establishment---Different unions could form a federation, but
nowhere in law it was provided that a Trade Union of workers of a
particular establishment could extend its membership to employees of
another establishment---No prima facie case of stay order against other
establishment had been made out, in circumstances---Petitioner union
which was Collective Bargaining Agent of the workmen employed by one
establishment, had been able to prima facie establish a case of unfair
labour practice against said establishment---Interim stay order passed by
Bench of Commission in that respect was confirmed, and concerned
establishment was restrained from taking action adverse to the
employment of petitioner's office-bearers and members; and the
petitioner was required to file affidavit in evidence.

2005 PLC 142 ref.

Muhammad Khurshid for Petitioner.

Faisal Mahmood Ghani for Respondent No.1.

Muhammad Sabir for Respondents Nos.2 and 3.

ORDER

BASHIR AHMED MEMON (MEMBER).--- This is an application under

Regulation 32(2)(c) of NIRC (P&F) Regulations, 1973 which has been filed
by the petitioner union while filing the petition under section 25(8)(g) of
the IRA, 2008.

2. It has been stated by the petitioner that it is the industry-wise trade

union registered with NIRC and is collective bargaining agent in respect
of respondent No.2 establishment vide Annexs.A/1 and A/2. It has been
stated by the petitioner that it extended membership towards employees
of respondent No.3 establishment in accordance with constitution in the
month of January, 2011 and the same has been submitted to the learned
RITU for approval and thousands of poor persons joined the petitioner
union and have obtained the membership of the petitioner union. Copy
of letter addressed to the learned RITU has been produced as Annex.A/3
and presently 598 employees of respondents Nos.2 and 511 employees of
respondent No.3 are members of petitioner union and such membership
list has been filed as Annexs.A/4 and A/5 respectively. It has been further
stated by the petitioner that in the month of March, 2006 respondent
No.1 retrenched the employees who are now employees of respondents
Nos.2 and 3 and established respondents Nos.2 and 3 as independent
establishments and at the time of establishing the respondents Nos.2 and
3 as independent establishments all the funds of the retrenched
employees were transferred by respondent. No.1 to respondents Nos.2
and 3 and services of those retrenched employees were rendered to
respondents Nos.2 and 3 through a contract agreement for the period of
60 months and the respondent No.1 establishment has 51% shares in the
establishments of respondents Nos.2 and 3.1t is further stated that the
petitioner union being CBA served notice in accordance with law in
terms of section 42(1) of I.R.A., 2008 upon respondent No.2 in respect of
charter of demands for the year 2009-2010 on 15-1-2009 and after receipt
of charter of demands, the respondent No.2 wrote letter dated 16-1-2009
to the petitioner union inviting bilateral meeting on 22-1-2009 but on 22-
1-2009 they only formally met without discussing the charter of
demands. Again petitioner union served a letter in terms of charter of
demands upon respondent No.2, that notice was replied vide letter dated
11-3-2009 and subsequently a meeting was fixed on 25-3-2009 but
respondent No.2 intentionally and deliberately neither resolved the
industrial dispute nor respond the same positively and ultimately the
petitioner union served notice of strike in terms of section 42(3) of I.R.A.,
2008 on 12-11-2009 and then the Federal Conciliator intervened in the
matter and called joint meeting for conciliation for amicably settling the
industrial dispute and there has been so many meetings before the
Federal Conciliator with effect from 25-3-2009 to 30-6-2010 but
respondent No.2 deliberately and intentionally is not resolving the
industrial dispute and is trying to delay the same. Thereafter on 30-6-
2010 the Federal Conciliator failed the conciliation proceedings as such
the petitioner union filed industrial dispute bearing Case No.9(2) of 2010
before this Commission and this Bench of Commission has passed award
vide order dated 5-1-2011, copy whereof is annexed as Annex.A/7. It has
been stated that respondent No.2 malafidely and intentionally is neither
settling the industrial dispute nor increasing the 20% increase allowed by
this Bench of Commission but has filed constitutional petition before the
honourable High Court of Sindh. It has been further stated that all the
employees of respondents Nos.2 and 3 are Ex-employees of Messrs Habib
Bank Limited, respondent No.1 and respondents Nos.2 and 3 have
engaged the services of Ex-employees in terms of agreement executed
between respondents Nos.2 and 3. It is stated that respondents
establishments are increasing the monthly salaries of the management's
staff every year but intentionally and deliberately have neither increased
the monthly salaries of poor employees nor have provided other
benefits/facilities as provided under the law. It has been stated that after
passing of order by this Bench of Commission regarding increase of 20%
the respondent establishments started harassments, victimization
against the office-bearers and members of the petitioner union due to
their trade union activities and the management of respondents
particularly respondent No.1 called the office-bearers of petitioner union
and threatened them for withdrawal of case and fresh charter of
demands for the years 2010-2011 otherwise the contract of respondents
Nos.2 and 3 will not be extended and respondent No.1 has verbally
issued direction to the management of respondents Nos.2 and 3 that
services of office-bearers and members shall be terminated/retrenched
forthwith. Accordingly it has been prayed that:---
(i) To restrain the respondents their officers/persons connected with
them directly or indirectly from committing further unfair labour
practice including dismissal, discharge, removal, retrenchment and
termination, or any act/action which adversely affect the terms and
conditions of the employment of the office-bearers/members of the
petitioner CBA union whose names are shown as per Annexs.A/4 and A/4
till final disposal of the main case in the interest of justice.

(ii) To restrain the respondent No.1 not to discontinue the contract

agreement with respondents Nos.2 and 3, in which the services of the
office-bearers/members of the petitioner CBA union has been dispensed.

(iii) To direct the respondents not to commit further any steps/actions

which are calculated as unfair labour practice in terms of section 17 of
the Industrial Relations Act, 2008.

(iv) To pass any other order/orders or directions in the favour of the

applicants as deem fit and necessary in the interest of justice."

3. On admitting the petition interim stay order was granted and notice
was sent to the respondents. The respondents have filed their comments
and preliminary legal objections and counter affidavit denying
vehemently the allegations made by the petitioner. It has been
vehemently denied that respondents Nos.2 and 3 are sister concern
organizations of respondent No.1. In this respect the respondent No.1 has
produced the documents from Securities Exchange Commission of
Pakistan (SECP) to prove the Directorship and pattern of shareholding in
respondent No.2 to prove that none of the officers of respondent No.1 is
Director or shareholder of respondent No.2, Form 29 showing particulars
of Directors and other officers, Form 205 and Form A under section 156,
of respondents Nos.2 and 3 separately are filed as Annexs.R/4 and R/5
respectively. It has been denied by respondent No.1 that it is the
employer of members of petitioner union nor the petitioner union is
registered and certified as CBA in respondent No.1 establishment, as such
respondent No.1 has been incorrectly arrayed as party. The petitioner
has impleaded the establishment where they claim to have been
registered separately as respondents Nos.2 and 3. The respondent No.1
has separate trade union registered in its establishment and lastly Habib
Bank Limited Workers Front was certified as CBA by the Registrar of
Industry-wise Trade Unions with whom respondent No.1 has entered in
to settlement, copy of settlement has been produced as Annex.R/1.

4. Respondent No.2 in its legal objections and comments has stated that
petitioner union is registered and certified in respect of respondent No.2
and legally cannot make members/represents the workers employed in
another establishment which is very separate and independent company
incorporated under the provisions of Companies Ordinance, 1984. It has
been stated that the proposed amendment made in the
constitution/extension of membership is itself against the basic object of
the constitution which has neither been approved nor the proposed
amendment is in accordance with law and even otherwise such
approval, if granted would be against the provisions of I.R.A., 2008, as
such instant petition is not maintainable and is liable to be dismissed. It
has been stated that agreement between two legal entities/companies,
H.B.L. respondent No.1 and C.S.L., respondent No.2 cannot be challenged
and or to make subject matter of this case before this Bench of
Commission under section 25(8)(g) of the I.R.A., 2008. It has been stated
that the petitioner union cannot legally espouse the cause of individual
workers and if any worker is aggrieved with any action of respondent
No.2 or apprehends any act of unfair labour practice, he can directly file
an application before this Bench of Commission. Only bald, vague and
general allegations has been made that the management has started
harassment and victimization against the office-bearers and members of
the trade union.

5. In their legal objections and comments respondent No.3 denied the

allegations of unfair labour practice and very clearly stated that
petitioner union is registered and certified only in respect of respondent
No.2 establishment and legally it cannot make members or represents
the workers employed in another establishment viz. Respondent No.3,
which is separate independent company and the proposed amendment
made in constitution/extension of membership has neither been
approved by NIRC nor the proposed amendment is in accordance with
law, as such the present petition under section 25(8)(g) of the I.R.A., 2008
is not maintainable. It has been stated that the agreement between two
establishments i.e. respondent No.1 and respondent No.3 cannot be
challenged or to make subject matter of the case before this Bench of
Commission and legally the petitioner cannot espouse the cause of
individual workers who even otherwise have not become member of
petitioner union and petitioner cannot represent the workers employed
in respondent No.3 establishment. It has been stated that Constitutional
Petition No.294 of 2011 was filed by respondent No.2 before honourable
High Court of Sindh challenging the status of petitioner union and
honourable High Court vide order dated 2-2-2011 has already suspended
the operation of the order passed by this Bench of Commission and since
the issue as to the status of petitioner union is sub judice before the
honourable High Court therefore the petitioner even otherwise is not
competent to file the present petition. It has been clearly stated that the
petitioner union was registered on 5-1-2011 and was certified as CBA
with effect from 4-1-2011 in respect of respondent No.2 establishment
but it has no relation or any nexus with respondent No.3 establishment
and legally it cannot extend its membership to respondent No.3 which is
separate independent legal entity and neither any amendment in the
constitution is legal nor the Registrar is legally competent to approve any
amendment in the constitution of the union. Accordingly the prayer for
dismissal of not only the stay application but main petition has been
prayed.

6. I have heard arguments of learned counsel appearing on behalf of the

parties and have gone through the entire material placed on record.

7. The petitioner union in order to satisfy this Bench of Commission has

only produced simple copy of letter dated 10-1-2011 addressed to the
learned Chairman, NIRC regarding amendment in the constitution of the
union regarding extension of membership but very surprisingly it is not
clear under what mode of service this letter was dispatched as there is no
acknowledgment etc. as such it cannot be considered that it has been
dispatched to the learned Chairman, NIRC. Even otherwise the petitioner
union has been registered in respect of establishment of respondent No.2
i.e. Messrs Collateral Services Limited and CBA certificate has been
issued to it in respect of said establishment. There is no any provision of
law under the I.R.A., 2008 that a union can extend its membership to
another establishment. No doubt some of the different unions can form a
federation but no where it is provided that a trade union of workmen of
a particular establishment can extend its membership to employees of
another establishment. The petitioner has not been able to produce any
documentary evidence regarding connection of respondent No.2
establishment with respondents Nos.1 and 3. On the contrary respondent
No.1 has produced documents from Securities and Exchange Commission
of Pakistan (SECP) where none of the director of respondent No.1 is the
director or shareholder of respondent No.2.

8. The petitioner union on 5-5-2011 along with statement has filed a pro
forma of resignation and pro forma of another letter and has claimed
that respondent No.1 has forced the employees for tendering the
resignation.

9. I have perused those documents. Annex.A/10 is a pro forma of

resignation which is addressed to Manager Collateral Services Limited
whereas another letter Annex. A/11 is letter offered to one Ashique
Hussain of Multan and it also is not from respondent No.1 i.e. Messrs
Habib Bank Limited. It is from one organization namely Professional
Employers (Private) Limited and no where it is proved that this
resignation has been tendered to the Habib Bank Limited, respondent
No.1 or that fresh offer letter has been issued by respondent No.1 but
since the petitioner is not registered for respondent No.1 establishment,
as such there was no occasion for respondent No.1 to call the office-
bearers and members of petitioner union and to threat them to
withdraw the charter of demands but only the bald and vague
allegations have been levelled by the petitioner union.

10. It has been held by our honourable High Court in its decision
reported in 2005 PLC 142 that:---

"Registrar of Trade Union is not empowered to approve or accept any

additional list of establishments, in absence of Registration of Trade
Union for those establishments. It is all the more necessary, before
seeking CBA status to get themselves registered for those establishments."

It has been further held by the honourable High Court in its decision
reported in 2005 PLC 142 that:---

"Constitution of Pakistan (1973), Art.199---Constitutional petition---

Registration of Trade Union---Cancellation of---Amendment in
Constitution of Trade Union---Extension of membership---Claim to
become Collective Bargaining Agent for other establishments as well---
Requirements---Petitioner union initially was registered for sixteen
Jamadars and was certified as Collective Bargaining Agent as such---
Subsequently petitioner brought amendment in its Constitution which
was approved by the Registrar Trade Union---Petitioner through said
amendment extended its membership to other establishment including
the respondents---Petitioner while submitting amended Constitution
before Registrar Trade Union had no annexed list of extended
establishments including the respondents---Petitioner claimed that it
should be declared Collective Bargaining Agent for extended
establishment also---Validity---Trade Union could only be certified as
Collective Bargaining Agent of an establishment for which it was
registered and of no one else---Petitioner could not have amended its
Constitution extending membership to establishment beyond sixteen
Jamadars without first seeking registration of extended establishment
under Ss.5 & 6 of Industrial Relations Ordinance, 1969---Amendment, if
any, of the Constitution, was internal working of petitioner and it could
not bypass provisions of law---Even if petitioner had annexed with his
application for seeking approval of amendment in its Constitution list of
additional establishments, registrar Trade Union was not empowered to
approve or accept same in absence of registration of said additional
establishment to that effect---If petitioner wanted to be(???) declared as
Collective Bargaining Agent for additional establishment, it was
incumbent upon it to first get it registered for those establishments and
thereafter it could have sought certification of Collective Bargaining
Agent in respect thereof."

In view of above facts and circumstances I am of the considered opinion

that no prima facie case of stay order against respondents Nos.1 and 3
has been made out. However admittedly the petitioner union is collective
bargaining agent for the workmen employed by respondent No.2, as such
the petitioner union has been able to prima facie establish a case of
unfair labour practice against respondent No.2 establishment, therefore
the interim stay order dated 9-2-2011 passed by this Bench of
Commission is confirmed and respondent No.2 is restrained from taking
an action adverse to the employment of petitioner's office-bearers and
members and the petitioner is required to file affidavit-in-evidence. Put
off to 8-6-2011 for filing affidavit-in-evidence by the petitioner.

HBT/1/NIRC Order accordingly.

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