PLASTICRAFTERS LABOUR UNION Versus PLASTICRAFTERS (PVT.) LTD

ORDER

This is an application under section 22‑A (8)(g) of the Industrial Relations Ordinance, 1969 (hereinafter referred to as the IRO).

2. Applicant No. 1 is a trade union of workers employed by the respondent. It is duly registered as CBA in the establishment. Applicants Nos. 2 to 27 are its officers, active workers or representatives of workers. The union served a charter of demands on the respondent, followed by notice of strike, earlier the respondent No. 1 also served a charter of demands on the union followed by a notice of lock‑out. As this industrial dispute could not be resolved it was submitted to Sindh Labour Court No. 1, Karachi for adjudication under section 32 (1‑A) of the IRO. The said Court has passed an interim award in the said case on 11‑3‑1990. It is alleged that even the interim award had not been properly implemented.

3. It is alleged that the respondent was not maintaining proper documents relating to incentive money payable to workers of cooler assembly and hot pot departments. The workers had complaints about rate, calculation and mode of payment of the incentive money. They were at first fed on false hopes of correcting measures but later on the management started harassing the officers and members of the union for withdrawal of the demands. They were approached at their residences, persuaded to give up trade union activities and resign from the union. They were threatened of dire consequences such as suspension, removal or dismissal from service. Complaints to higher management also fell on false ears. Instead the Management is alleged to have levelled on called for allegations and charge sheeted President and General Secretary of the Union.

4. On 13‑5‑1990 the respondent is alleged to have imposed a lock‑out which continued upto 17‑5‑1991. Mr. Qurban Ali Abbasi, Assistant Director, Labour however managed to persuade the Management to lift the lock‑out except for 23 workers mentioned in Exh. 5/32. The management held out an assurance that they would also be taken on duty on 21‑5‑1990 but did not keep their word.

5. In order to cover‑up their acts of unfair labour practice the management alleged that the workers had resorted to illegal strike on the aforementioned dates and charge‑sheeted leaders of the union representatives of the workers on works council, active members and shop stewards for go slow, incitement and illegal strike. Several workers were suspended, forced to proceed on special leave or locked‑out. All the officers of the union except its Vice‑President are out of factory. Hence this application.

6. In its written statement the respondent denied the abovementioned allegations. It is stated that this application has been filed as a counterblast to Application No. 4‑A (91)/90‑K and Complaint No. 4 (22)/90‑K filed by the company against 19 applicants for acts of unfair labour practice committed by them. It is further stated that there was no dispute about payment of production incentive in the cooler and hot pot department as alleged. It is only after the interim Award dated 11‑3‑1990 that the union started the trouble by raising demands and committed various acts of unfair labour practice such as go‑slow and illegal strike. In order to exculpate himself of the liability for acts of unfair labour practice, General Secretary of the Union started throwing blame at the door of respondent by a spate of letters. The applicants had observed illegal strike on 14‑5‑1990 but remained inside factory premises but on and from 15‑5‑1990 they remained on strike outside the factory. After filing of the complaint all the striking workers except Applicants Nos. 10, 18 and 20 reported for duty. The three applicants were charge‑sheeted on 9‑8‑1990. Applicants Nos. 16 and 17 were not charge‑sheeted as they reported for on direction of Directorate of Labour. Applicants Nos. 26 and 27 were charge sheeted for habitual absence from duty but were let off with warning. Remaining 19 applicants were charge‑sheeted for go‑slow and/or illegal strike on different dates. Domestic inquiries are pending against them. The main instigators being under suspension/on special leave the atmosphere in the factory is peaceful and workers are giving normal production. The maintainability of the application has also been challenged on the ground that it was not presented by applicants in person.

7. Pleadings of parties gave rise to the following issues: ‑‑

(1) Whether the petition was not validly presented before Commission and is therefore liable to be dismissed?

(2) Whether Petitioners Nos. 2 to 27 have been illegally locked‑out or sent on special leave by respondents?

(3) Whether the respondents have threatened the petitioner's office bearers and members to withdraw their demands?

(4) Whether charge‑sheet issued to petitioners arc mala fide?

(5) Whether the respondents visited members of petitioners at their residence and persuaded them to refrain from activities of the union or resigning from its membership and threatened of suspension and other dire consequences if they failed to oblige?

(6) Whether there is apprehension of commission of acts of unfair labour practice by the management in future?

(7) Relief.

8. My finding on these issues is as under: ‑

Issue No. 1: In the negative.

Issue No. 2: In the negative.

Issue No. 3: In the negative.

Issue No. 4: In the negative.

Issue No. 5: In the negative.

Issue No. 6: In the negative.

Issue No. 7: Petition dismissed.

REASONS:

9. The applicant examined M/s. Muhammad Ali, General Secretary of the Union as P.W. 1 (Exh. 3) and Amir Ali P.W.2 (Exh. 10) and produced several documents. Respondent examined Mr. Mohayuddin its Personnel and Administrative Officer as D.W. 1 (Exh. 11).

ISSUE NO. 1:

10. The burden of this issue was on, the respondent but no evidence was led on the point. No question was put to P.W. Muhammad Ali in cross- examination in this respect. P.W. Aamir Ali Exh. 10 however stated in cross -examination that applicant Muhammad Ali had gone to Islamabad alongwith his Advocate to file the application. This statement was however challenged. It is argued by Mr. S.M. Yaqoob, the learned Advocate for the respondent that the application is not maintainable because it was presented at Islamabad by the learned counsel for the applicant. He has relied upon a Full Bench decision of NIRC reported in 1993 PLC 979 and the decision of Sindh Labour Appellate Tribunal (1990 PLC 59) in support of his contention.

11. These decisions however, do not support him. In the cases cited by him the petition and appeal were signed and filed by Advocates who had also not filed their powers. The aggrieved workers had not signed the petition or the appeal. It was in the circumstances held that the application/appeal were not maintainable. My finding on issue No. 1 is therefore in the negative.

ISSUES NOS. 2, 3 and 5.

12. The petitioner and his witness have deposed that they have been locked‑out. The witness of respondent has refuted the allegation. It is however an admitted position that 10 out of 26 applicants were initially suspended on ~,i charges of go‑slow/illegal strike and later on sent on special leave on full pay. There is ample authority for the proposition that suspension on charges of misconduct is not tantamount to lock‑out. Reference in this connection may be made to 1970 PLC 1; 1971 PLC 11 and 1962 PLC 268.

Besides these 19 workers are being paid full wages during their special leave. So long as full wages are paid to them they cannot insist that management should give them work or allow them entry in the factory premises pending completion of inquiry particularly when management alleges that they were inciting other workers to resort to agitative measures and were responsible for illegal strike and go‑slow for acceptance of their demands and that working conditions assumed normally after their suspension and grant of special leave to them. Support is sought from the case of Saleem Butt v. Muhammad Ashraf and another (1982 PLC 674) in this respect.

13. Lock‑out has been defined in subsection (xvi) of section 2 of the IRO. It means the closing of a place of employment or part of such place, or the suspension, wholly or partly, of work by an employer, or refusal, absolute or conditional, by an employer to continue to employ any number of workmen employed by him, where such closing suspension or refusal occurs in connection with an industrial dispute or is intended for the purpose of compelling workmen employed to accept certain terms and conditions of on affecting employment.

14. The petitioners were therefore bound to prove that the respondent had refused absolutely or conditionally to continue to employ them and that such refusal had occurred in connection with an industrial dispute or was intended for the purpose of compelling workmen employed to accept certain terms and conditions on or affecting employment.

15. The allegations of the petitioners in this connection have been reproduced in para No. 3 of this order. The evidence to prove this allegation consists of depositions of P. W. Muhammad Ali P.W. 1 (Exh. 30) and Aamir 'Alt P.W. 2 (Exh. 10) and documents to which I will refer presently.

16. In connection with allegation that the workers were at first fed on false hopes of corrective measures on complaints about rate, calculation and mode of payment of incentive money but later on the management started harassing the officers and members of the union by threats of suspension, dismissal, removal from service and other dire consequences for acceptance of the demand; P. W. Muhammad Ali (Exh. 3) deposed that workers of cooler section where the scheme was already in force had complained that they were not getting correct incentive under the scheme. They protested against the dishonest practice, whereupon the management threatened the workers at their residences through Hussain Bux, Incharge of Cooler Assembly Department. He asked them to resign otherwise they would meet dire consequences. Thereupon, the workers made complaints to the management and union. The union also took up the case with the management. Such intimation was given to Mr. Iqbal Aalam, Chairman of the Company. Thereupon, all the workers of Cooler Assembly were removed from service on false charges.

17. Complaints of threats at residence of workers by Hussain Bux Incharge Cooler Department were made by Muhammad Usman vide Exh.5/21, Muhammad Hussain vide Exh. 5/22, and Muhammad Saleem Card No.39 vide Exh. 5/23 but none of them was examined to prove the allegations. Complaint about threat by Mohayuddin, Manager Administration and Personnel that he would be dismissed from service in case he did not resume incentive Production was also made by the Muhammad Saleem (Card No. 39) vide Exh. 5/20. The allegation that the incentive money was not properly calculated and documented was made by complaints Exhs. 5/5 to 13 but none of complainants has been examined. No details are available about the alleged miscalculation.

18. It may be mentioned that demand for introduction of incentive scheme in glass section of the factory, was first of all made on 23‑12‑1989 as appears from Exh. 5/1 later on according to Exh. 5/1 an untoward incident took place between workers and incharge of that section on 10‑1‑1990 in connection with this demand. According to the respondent's witness (Exh.II) incentive scheme was introduced in cooler department about 8 years back. This document is not challenged in cross‑examination of D. W. Mohayuddin. No document has been produced to show that there was a complaint in respect of its rate, calculation and mode of payment during these 8 years. The first ever occasion when a question was raised before it was by demand No. 13 of the charter of demands, dated 19th January,1989 Exh. 6 i.e. after the demand relating to similar incentive in glass section was raised. The demand is as under: ‑‑

(13) Production incentive:

Production incentive for production in excess of average production should be calculated on scientific basis for providing just and proper compensation to the concerned worker.

19. It may be observed that rate and‑mode of payment was not questioned in this demand. The demand was rejected on 24‑1‑1989 vide letter Exh. 5/2. The question as to rate, calculation and mode of payment was thereafter raised vide Exhs. 5 to 13 between 16‑3‑1990 to 27‑3‑1990 by stereotyped letters in identical language signed by different workers although this demand was not made part of statement of claims (Exh. 7) on the basis of which the union has proposed to dispose of the industrial dispute between parties raised in Cases Nos. 2/89 and 3/89. Subsequently the General Secretary of the Union also took up this question vide Exh. 14 (dated 17‑4‑1990); 15 to 17, 25 and 26 (dated 12‑5‑1990). It does not appear that Demand No. 13 was dropped in the statement of claims (Exh. 7), under any pressure or threat except for a desire to settle the dispute amicably, indicates that the dispute is not as serious as is being represented now. Admittedly the union had itself resorted to illegal strike for two hours on 10‑5‑1990 for compelling the management to withdraw charge‑sheets and orders of suspensions of workers. The action was apparently based on acts of misconduct for which domestic proceedings were going on. Thus, there is an equal possibility that there was a strike in this connection on 11‑5‑1990. Thus, there is no convincing evidence that the management had locked‑out workers for the purposes referred to in the definition of term lock out.

20. Threats to dissociate from the union and trade union activities are no doubt acts of unfair labour practice but appear to have no relevance to the allegation of lock‑out as defined in IRO. In regard to this allegation also no worker or officer of the union has been examined. P. W. Muhammad Ali (Exh.3) did not depose that the management had issued such threats to him or to any other worker in his presence. He only deposed that the management started harassment by issuing false charge‑sheets to the members of the union as they did not like their becoming CBA and as such they did not cooperate with them These acts of victimization were aimed at gaining ulterior motives of the management but these motives have not been specifically placed or deposed to P.W. Aamir Ali deposed, "all these acts were committed by the respondent as our union was comparatively stronger than the previous union of the establishment which was a pocket union. The management wants us not to indulge in trade union activities." The management wanted to make the union a failure. Thus, this allegation has also not been proved.

21. The allegation that the management had closed down the factory from 13‑5‑1990 to 17‑5‑1990 is also not proved by convincing evidence. Mr. Qurban Ali Abbasi, the Assistant Director Labour, who had dealt with the situation on the spot was the best witness to throw light on this aspect of the case but he was not examined. The burden of proof was on the petitioners, which that have failed to discharge. As the best evidence was withheld, presumption would be that Mr. Abbasi would not have supported the petitioners had he been examined.

22. It may be mentioned that Petitioner No. 4 is said to have expired and petitioner No. 18 has applied for deletion of his name from the array of petitioners. It is stated by respondent without contradiction that Petitioners Nos. 16 and 17 are on duty and no action is proposed against them. Petitioners Nos. 26 and 27 have also been let off with a warning. As to the remaining applicants my finding, in the light of above discussion, is in the negative.

ISSUES NOS. 4 and 6:

23. There is no evidence on record to suggest that charge‑sheets were issued to the petitioners mala fide. There is also no evidence that there is apprehension of commission of unfair labour practice against the petitioners. The management has initiated proceedings against them on specific charges enquiries with respect to which are pending. The result of such enquiries would be subject to challenge before Labour Court by grievance petitions. For the present on the basis of evidence on record, my finding on issues Nos. 4 and 6 is in the negative.

ISSUES NO. 7:

24. In view of my finding on Issues Nos. 1 to 6, this petition is dismissed.

H.B.T./194/N.I.R.C.

Petition dismissed.