Engro Fertilizers Limited through Asad Shakil Khan (Petitioner) VS Full Bench of NIRC & others (Respondent)

II]

IN THE I{IGI{ COURT OF SIND}I Bench

AT SUKKUR.

Constitutional petition No. D_2gg o f2024 (Engro Fertillzer Linrited v Fut Be,rch ofNlRC & others ) Constitutional petition No. D-2g9 of 2024 (En8ro Fertilizar Limited v Ful Bench ofNIRC & olhers ) Constitutional petition No. D-290 of2024 E Ierti,izer L,mi ted v Ful Bench of NIRC & orhers Date Order with s ture of .l S

N4r. Justice Adnan-ul-Karim Memon Mr. Justice Muhammad Abdur Rahman Date of hearing:- 23.05.2024 Date of judgment; a9_.02.202s

Mr. Faisal Mahmood Ghani advocate for the petitioners.

Mr' Jaffar AIi Shah advocare for respondents'N".'ii" Mr. Jamshed Ahmed Faiz advecate ior."spond"nt. I i, c.p. No. 2g9 0f 2024.

iVo. : arO C.

Mr. Abdul Hafeez Irfan advocate for respona"nt No. ii, C.r, No. D_2g9 of 2024

.I UDGM ENT

Adn -rxl nime Me @m All captioned petitions, sharing common legal and factual issues, need to be disposed of through this single judgment.

2.The case of the petitioner company is that the petitioner company, a fertilizer manufacturer with operations across Sindh and punjab, conducted a review to improve efficiency and resource arocation. This led to organizationar restructuring to enhance career growth and adapt to upgraded production processes, this involved abolishing Group ,,F,, (60 employees) and promodng Group "G" (56 employees). Four employees from Group ,,G,, accepted voluntary separation schemes. As per the company, the private respondents cannot object to these agreed-upon changes under the guise of unfair rabor practices as such three grievance Petitions were filed before a Singte Bench of the Nationar Industrial Relations Commission, (I.{IRC), including by Reipondents 3 & 4 inC.p. No. D- 288 of 2024, challenging a completed promotion. Despite this challenge, Respondents 3 & 4 were already serving in the promoted roles and receiving corresponding salaries Notice was issued on the main grievance petition and stay application. The petitioner company filed preliminary legal objections, with a reply statement and counrer affidavit, along with an application for a hearing. Evidence was led by both parties. Respondents 3 and 4 also testified. eurban Ali, Deputy Manager of Industrial Relations, authorized by the Board of Directors of the petitioner company was examined. The parties presented their evidence and ents heard. The learned S ingle Bench of NIRC allowed the grievatrce tions vide i mp d order dated 20-09-2023. The petitioner company filed ppeals No' 124(08)/2023s, rz{(09)r2023S, and r2A(r0)rzo2r-s. before the I Bench of NIRC chal lenging orders dated 20-09-2023 issued by the learned

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Single Member of NIRC in grievance cases No. 4B(28y21-S and 4B(29)/21-S. However, these appeals were dismissed by the Full Bench of NIRC via an impugned order dated 25-01-2024, and as per the petitioner company, which misread and misapplied the evidence and ignored settled law, thus are liable to be set aside.

3.leamed counsel for the petitioner-company argued that no grievance notices, which is condition precedent under section 33(l) ibid have been served by respondents No 3 & 4 upon the petitioner company; he emphasized that respondents 3 & 4 admitted during cross-examination that they failed to serve a grievance notice upon the petitioner, which was outside the scope of Section 33 of Industrial Relations Act (IRA 2012). This renders the grievance petitions non- maintainable. Per learned counsel, the grievance petitions were/are not maintainable under Section 33 of the IRA 2012 as this section allows grievance pelitions only for enforcing rights guaranteed under 'law,' 'award,' or 'settlement.' Per learned counsel, the grievance petition is only valid if it relates to a right guaranteed by law, settlement, or award. He added that even if the private respondents are considered workmen, their grievance does not fall under any legally guaranteed right. Learned counsel argued t}rat respondents 3 & 4 accepted their promoted salaries and positions, implying acquiescence. This conCuct renders the grievance petition inadmissible due to acquiescence and the law of estoppel. He emphasized that respondents 3 & 4 admitted during cross- examination that Engro Fertilizers management reclassified them from Grade F to management grade P-6. Per learned counsel, the NIRC erred in stating that the petitioner failed to produce job descriptions, thoughjob descriptions were filed as an employee cannot insist on remaining in their current role and refuse a promotion. Leamed counsel next argued that the petitioner company reviewed operations to optimize costs and ensure a sustainable manufacturing process for the company, this involved analyzing resource allocation, deployment, and utilization, along with process efficiency and effectiveness. Per learned counsel, to shape career grouth and drive efficiency, the petitioner company restructured its organization, this aimed to create an agile and skilled workforce equipped to manage upgraded production processes. Leamed further added that respondents 3 & 4 were performing supervisory and managerial duties as their primary function. This included responsibilities like hiring, promotion, demotion, transfers, discipline, and determining employee requirements. He pointed out that manual work, if any, was ancillary, alter promotion, respondents 3 & 4 received benefits in the management cadre, as such they cannot file grievance petitions before the n se included increased salary, 12 air tickets per year, access to the management Club and School, enhanced end-of-service benefits (including vident fund), and improved medical coverage. Per learned counsel, their last

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pay slips show gross salaries of Rs.407,169/- and Rs.634,575/- respectively, this includes benefits in the management cadre and an inflation increment. He argued that the Single Bench of NIRC erred in Para 7 by failing to determine, how the promoted posts became vacant (freshly created, retirement, promotion, etc.). Per leamed counsel, the parties previously agreed to a Memorandum of Understanding (MoU) for the period January 1, 2021, to December 31,2022, which became part of the Memorandum of Settlement. This MoU contains Section 3 outlining the agreed-upon terms. He submitted that promotion is an agreed right, covered by the settlement agreement, Per leamed counsel, the respondents cannot object to agreed provisions, especially under the guise of unfair labor practices based on promotion posts. He further argued that the settlements between the employer and CBA are binding on dissenting workers. Learned counsel submitted that respondents No. 3 & 4 during their cross- examination admitted that the MoU dated 05.10.2021 attached with Affidavit in Evidence signed between management and union from 01.01.2021 to 31.12.2022; He referred to clause I of the MoU contains rights of CBU (CBA) union and management. He argued that the NIRC's finding that workers can forego promotions and that the settlement lacks provisions for promotion beyond Grade F strongly suggests that Grade F is the terminal point in the workers' grade structure. He added that promotion is not an unfair labor practice, as such, the grievances petitions lack specific instances ofl unfair labor practice and were/are, therefore, not maintainable; that the Single Bench of NIRC ened in finding that the promotion was malicious and intended to suppress union activities. Leamed counsel argued that there is no legal requirement for consent or consultation lor promotion as promotion from Grade C to F is permissible under the CBA. Per leamed counsel promotion to P-6 (Management Cadre) is valid as promotion is not based on malice or dissatisfaction. Besides transfer is a normal part of employment. Since Engro Fertilizers Ltd. is the proper legal entity such a Grievance Petition filed without following proper procedure was/is not maintainable. ,A petition filed by a provincially registered union for a trans- provincial establishment is not maintainable. On the question of concurrent findings of facts and law by the NIRC, he argued that concurrent findings can be overtumed if based on the application of incorrect [aw. Petitioner's affidavit in evidence was not challenged, creating a presumption of its acceptance. He argued that since there is no specific law regarding promotion in the Standing Orders, and promotion is not a guaranteed right, the grievance petition ought to have been dismissed in terms of the ratio of the judgments rendered in the cases of Liaquat Ali v. Manaoi Director Sui Northern Pipelines Ltd.,2009 PLC 79 IS vant to the current grievance petition. In support of his contention he relied upon the of Karachi Pipe Mills emolovees Union Karachi v Karachi Pipe il 1992 SCMR.36, Liaauat Ali v M/s Si ndh Labour Aooeliate

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Tribunal Karachi & others n993 FLC 1,09 , Munnawar Hussain v MCB Ltd. Fl,J 2006 Lahone 1130, Zar Khan v Senior Vice Presiclent' Muslim Commercial Bank Ltd. & others [984 PI-C E9 re Mana s/, Dhome

Pakistan td and others v The Cha irman Firsl bour Court East Pakistan & others 191'X, PLC 406, Sved Muhammad Hussain v Pakistan Tobacco Co Lld and others PID 1980 SC E0, Attied Bank o! Pakistan Workers Union v Allied Bank Ltd. Emolovees Unio &o thers 2$AG P[-C 30E o Ho

Khan & others 2A2L PLC 148 PIA Corporation v Sved Sule man Alam R izvi & others 2015 SCMR 1545, Mukhtar Ali v Pakistan Railways and others 2005 PLC I 166, ssers Inter boratorie PLD [975 Kanactni 279, unreportecl order pdssed i n Ctuil Aooeals No. 4 81 of20l7 & 913 and 914 of 2020 passed by Suprenne Court of Pakistan and another unreported order in Civii Petilion No. 34 of 2022 parised on 30.01.2024, Muslim lll rcial Limite izwan Ali Khan 2024 SCMR 350, United Bank Limited v Jamil Ahmed and others 2024 PLC 5A, Muhammad Sha-fi @ Kuddoo v The State 2019 SCMR 1045, Ufilirv Sbre Co fporation of P stan Limite d v Puniab bour Appe llate Tribunal & others PX-D [987 SC 447, Muhammsd Nawaz v Member Judicial Board and others 2014 SCMR 9X4, Muslim Commercial Bank Ltd v Muhamma Riaz Jurt FII-R. 20[0 109 and Muhanmad Akhtar v Manna 2004 SCMR 974. He lastly pmyed for allowing the instant petitions by dismissing the grievance petitions filed by the private respondenls.

4.Mr. Jamshed Ahmed Faiz, advocate for respondents No' 3 and 4 in C'P' No. 289 of 2024, referred to the objections filed by the respondents and argued that on September 20,2023, the NIRC set aside an order dated October 5,2021, that forcibly converred the private respondents from their technical Grade-F positions to lower-ranked management positions (P-6). He further submitted that the respondents were improperly treated by the petitioner company just to knock them out ofservice so that they may not be able to file a grievance petition against the highhandedness of the management of the petitioner company. As per counsel, this treatment violates a 2021 Memorandum of Settlement that does nol allow for such conversions from workmen to management cadre positions' He further argued that their Grade-F positions are the highest in their technical field within the petitioner company, however, the petitioner company acted arbitrarily and against labor laws by reducing their salaries and forcibly converting them just

to knock them out of the category of the workman to create a ground to remove them from services, therefore they were compelled to approach NIRC to have October 5, 2021, the order passed by the management set aside with the declarati o their forced conversion was/is unlawful and illegal and an injunction order nting the petitioner company from further implementing the order dated October 5,2021. He further argued that the settlement agreement

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dated 01-01-2021, being statutory, only includes payscale A and F, for workmen and the Memorandum of Settlement dated 0l-01-2021 does not include any provision for converting technical employees into non-technisal roles. He emphasized that on October 5,2021, the respondents were forcibly converted to Grade P-6 (Senior Plant Operator) from Grade F. This contradicts the Memorandum of Settlement, which classifies Senior Operator as Grade E. The petitionff company's classification also deems the management grade (p-6) inferior to the respondent's previous position in Gmde F. Moreover, the Memorandum of Settlement lacks any procedure for converting Grade-F employees into the management cadre. The intention of the petitioner company, through the impugned promotion/conversion order, was/is to remove them from service with malafide intentions. He further contended that the present petitions are not maintainable, as NIRC (.,lational Industrial Relations Commission) has rendered concurrent findings of fact, which cannot be challenged through writ jurisdiction. On the point of service of grievance notices, upon the petitioner company, he argued that earlier one of the respondents filed grievance petitions under Section 54(e) ofthe IRA,2012, seeking an injunction against the petitioner company from altering their employment status. The Single Member NIRC Sukkur dismissed the grievance peritions, ruling that section 54(e) did not apply to individual grievances. The Single Member directed the respondents to invoke Section 33 of the IRA, 2012, for individual grievances after exhausting internal grievance procedures by serving the petitioner company. They supported the impugned ordets passed by the learned NIRCs. He concluded by praying for the dismissal of the captioned petitions.

5.Mr. Jaffar AIi Shah represents respondents 2 to 4 in C,p. No. 28912024 and Mr. Abdul Hafeez Irfan represents respondent 3 in C.p. No. D-289/2024 has adopted the arguments ofcounsel for respondents 3 and 4 in C,P No. 288 of 2024.

6, At this stage counsel for the petitioner company by exercising the right of rebuttal submitted that the respondents' claims were previously dismissed by NIRC, and they cannot re-litigate the same issue (estoppel and res judicata). He added that the company restructured to improve efficiency and reduce costs, including offering VSS (which the respondents declined). He argued that there is no legal right to promotion under the relevant labor law (lndustrial and Commercial Employment (Standing Orders) Ordinance, 1968). As the respondents are now in management positions, they are no longer covered by the Standing Orders; that the petitioner company has the right to promote employees existing Memorandum of Settlement. He lastly submitted that the respondents the promotion and are currently working and receiving a salary in the promoted position

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7.We have heard the leamed counsel for the parties and perused the record with their assistance and case law cited at the bar.

8.Petitioner Engro Fertilizers Limited company calls the orders dated 25.01.2024 passed in Appeat No.12A, (09y2023-S by Full Bench ol NlRC'/Respondent No. I and on 20.09.2023 in Case No.4B(30)/2021-S by /Single bench of NIRC. The reasoning of the learned full bench of the NIRC is that the petitioner company retains all management rights, including the right to direct and control its workforce. This includes hiring, promoting, demoting, transfening, disciplining, discharging employees, and determining staffing needs. In the petitioner company position classifications exist from Grade A to Grade F, which outline pay rights with grades ranging from A to F, Upon reaching the maximum salary within a grade, a salary revision may be considered. However, the Memorandum of Settlement lacks provisions for promotions beyond Grade F, suggesting that Grade F likely marks the highest attainable grade for workers, with potential advancement into officer positions thereafter. It was further observed that the petitioner's counsel failed to provide information on the company's profile when questioned by the NIRC Bench. Additionally, he could not provide evidence regarding the abolishment of Grade F, including any s€ttlement agreement with the CBA, relevant orders, or notifications. This demonstrated a lack of preparedness on his part. The petitioner company claimed that all employees in Grade F either accepted a promotion or filed grievances, effectively ending the grade. That factum lacked documentation for the grade,s abolishment. While he showed a salary increase with the promotion to p-6, he couldn't provide salary data for other employee classes to compare inflation- related raises. The petitioner company had the right to decline promotion, and no worker can be compelled to accept it. It was further observed that the petitioner,s counsel failed to demonstrate any misinterpretation of evidence by the Single Member of NIRC to justif) the Full Bench's intervention. Consequently, all thee appeals filed by the petitioner company were dismissed as meritless.

9.The questions involved in the present proceeding, for determination, are whether the petitioner company can convert the status of the respondents/workman to officer category by promoting them to p-6 gtoups and whether a grievance petition can be filed under section 33 of the Industrial Relations Act 2012, based on unfair labour practice.

10.There is no dispute that petitioner company vide order dated 05.10.2021 p oted the private respondents from Grade F to P-6 management cadre, however, romotion has been objected by the respondents leading to filling of grivence petitions before NIRC, on the premise that this anangement was/is against their desire and consent.

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11.This issue has been addressed by the leamed single bench of NIRC on the premise that the respondents' conversion/promotion order dated 05.10.2020 was invalid due to salary reduction and no overtime as these are significant detriments in the converted position. Besides petitioner company failed to provide clarity on the new role as the origin of the vacancies remains unexplained. Additionally, the "P-6" position waVis not recognized in the Management Cadre. Lastly, the conversion was/is a punitive measure against trade union activities. Thus the grievance petition was allowed, and the order dated 05.10.2020 was set aside. An excerpt whereof reads as under:-

" I have heard the arguments of the learned counsel for both parties and perused lhe record. It is very strange thal pelilioners' salaries are decreased in a conversion/promoliott position, it is also worth mentioning lhat overtime is also not allowed in the above-said conversion) position, moreover, the respondents failed to produce job description of the converted/promoted position. The respondenls were unable to explqin how the conve ed/promotion posl became vacant, or v)helher lhese posts were freshly created or lhey became vacan! due to lhe retiremenl or promotion of incumbents. According to the Memorandum of Seltlement, the last top position or grade is F-Grade and there is no mention of the P-6 position in the Managemenl Cadre. Moreover, the petitioners never wanted this position and they are not availing the perks and privileges of the P-6 is a self- created posilion to punish the entployees, and they should not take part in trade unionism. The employees that they should not take part in trade unionism. The employees, that they should not lake part in lrade unionism, The conversion/promotion ol the petitioners was based on malafide intention of lhe respondents to deprive the petitioners of the status of worbnen, in fact, they wanted to curtail/restain their trade union activities. Therefore, the instant petition is allowed and lhe order dated 05.10.202 is set aside, wilh no order as cost. File be consigrcd lo record room-

12.The full bench ofNIRC endorsed the findings ofthe single bench ofNIRC vide order dated 25.01.2024 on the following premise:- "5. The learned counsel for the appellant while orguing his case submitted and reilerated in his arguments all the facts which he reiterated at the time of submission of written reply. On the olher hand, learned courcel for the respondenls supported the impugned order and requested that oll three appeali be disnissed. While gcting tfuough the Memorqndum of Settlement in Section 3 lhe respondent as well as the Employee Union agree on rhe following: "The company retains all rights of management resulting from ownership of the Company and perlaining to lhe operalion of business. These rights shqll include (a) the right to direct and control the workforce i.e. Among olhers lhe iSht to hire, promote, demote, lrarc/er, discipline, discharge, lo creale to discontinue, or reclassily jobs, to delermine lhe number of employees needed" and the Memorandum of Settlement is also attached with position classifrcation and starting lrom Grade-A, Crade 8, Grade-C, Orae-D, Grade-9, and Grade-F. The rights of pay as per Section 6 is in the qltached ATTACHMENT 'A'. The pay group slarls fro* and ends at Crade F and if a worker reaches on sealing of his grade basic salary the sealing may be considered for revision. Nowhere in the Memorandum of SetlemenL it is permitted that the worker class lo reach Orade how will be prornoted it meqns I the Eradalion of the workers class comes to an end qt Crade F aad

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probably onward in officer class. However, when during the arguments we posed a question to the learned counsel for the appellant to appraise abofi the agrogram of the company he could nol satisfy the Bench in this respect. Moreoyer, when he was asked whether Grade F is abolished whether there is any agreement of Settlemenl redched bet, een the CB And the company in lhis respect, and whelher any order/notilication hqs been made in respecl of abolishing Crade F he was unable lo bring dny letter show his ignorance in this respect. Though he pleaded that the total strength in Grqde F is 60, 04 out of 6A opted for VSS 48 accepted promotion and the remaining 8 filed grievance petitions, qnd thus the vthole group cqme lo an end. He is unable to show any document qboul the abolishment of Grade F, he also provided the breakdown in this respect of the salqry the petilioner used to recehte in Grade F and will receive in P-6 and pleaded that lheir salary is nol reduced bul ralher enhanced. However, when he was i asked that the raise in ,he salary due the inflation would also be received by the workers class of the company as well as the ofiicer class, he was unable lo show w lhe salary of both classes.

6.Admittedly the petitioners had the right to forgo their promotion and no worker can be forced for promolion.

Moreover, the learned counsel for the appellant failed to point out any misreading and non-reading of documentary evidence by the learned Single Member to warranl the interference of this Bench, therefore, all the above-menlioned three appeals around meritless stand wele dismissed. No order as lo cosr. The Jile be consigned to the record room after due completion. "

13.Keeping in view the above factual as well as legal findings, in such circumstances, the High Court has the power only to issue a writ of certiorari to review NIRC decisions based on a misreading of evidence or jurisdiction error; as the scope of judicial review of the decisions as discussed supra is limited. This court generally does not interfere with concurrent findings of fact unless there's evidence of Jurisdictional erors, errors of law, manifest injustice, and violation of principles of natural justice which factum is missing in the present case.

14.On the issue of concurrent hndings, ifboth a single bench and a full bench of the NIRC have reached the same conclusion on a matter of fact, it carries significant weight then the High Coun will be hesitant to overturn these findings unless there's a strong case for one ofthe exceptions mentioned above as the high coult is not the appellate court in the matter in dispute against concurrent findings.

15.Coming to the proposition so forward by the petitioner company that the issue of promotion in a company cannot potentially be agitated in the National Industrial Relations Commission (NIRC) based on unfair labor practice. The concept of unfair labor practice refers to actions by employers or employees that interfere with, restrain, or coerce employees in the exercise of their rights. These rights may include the right to organize, bargain collectively, or engage in other concerted activities for mutual aid or protection. Promotion may be considered a right if it is explicitly stated in a collective bargaining agreement or licy. If the employer denies promotion based on discriminatory or retaliatory motives, it could be considered an unfair labor practice. For unfair labor practices based on promotion denial, the parties need to present evidence the decision ofthe company was based on discriminatory factors such as race,

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gender, religion, union membership, or protected activities. Retaliation for engaging in union activities or filing grievances could also be considered an unfair labor pmctice. In such circumstances, the NIRC will investigate the complaint and conduct a hearing to determine the merits of the case. If the NIRC finds that the employer engaged in unfair labor practices, it may order remedies such as reinstatement, back pay, or other appropriate relief.

16.Touching on the second issue of non-service of grievance notice. Under Section 33 of the Industrial Relations Ac1,2012 (lRA 2012), ifa grievance notice is not served, the grievance petition can be dismissed. This is because service of the grievance notice is a mandatory requirement and a precondition for filing a grievance petition. The law requires that a grievance notice be served on the employer before filing a grievance petition. This allows the employer to respond to the grievance and attempt to resolve it amicably. If the employer fails to respond or resolve the grievance, the employee can then file a grievance petition with the National Industrial Relations Commission CNIRC) if the organization is transprovincial. If the employee fails to serve a grievance notice, the NIRC may dismiss the grievance petition. This is because the employer has not had an opportunity to respond to the grievance and attempt to resolve it. In some cases, the NIRC may allow the employee to amend the grievance petilion to include the grievance notice. However, this is usually only done if the employee can show that they had a good reason for not serving the grievance notice. In the present case, the parties were allowed to lead evidence and the petitioner company responded to the allegations as such they were well aware of the allegations and led the evidence as such this point is ofno use to be looked into in constitutional jurisdiction at this stage.

17.ln the light ofthe above facts and circumstances ofthe case, we are of the view that this Court in its Constitulional jurisdiction cannot interfere in the concurrent findings recorded by the two competent fora below and we also do not see any illegality, infirmity, or material inegularity in the common order passed by the learned Full /single Benches ofNIRC warranting interference ofthis Court. Hence, the instant Petitions are found to b-e meritless and are accordingly dismissed along with the pending application (s) with costs.

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MOHAMM.AI) ABDUR RAHM.A,N. J I have had the honour of reading the order passed by my learned brother Adnan Karim ul Memon, J and respectfully, for the reasons that follow, have come to a different conclusion regarding my decision in each of these Petitions.

2.The facts in these three Petitions are not in dispute. Each of the Private Respondents in these Petitions are employed by the Petitioner and were admittedly "workers" or a "workman" within the meaning of the definition of that expression as contained in Sub-Section (xxxiii) of Section 2 of the Industrial Relations Act,20l2 (hereinafter referred to as the "Act,2012"). The entire class in which the Private Respondents were employed by the Petitioner i.e., Class F was 'teorganised" by the entire class being cancelled and each ofthe members of the class indiscriminately being promoted into a management class i.e. Class P-6.

3.The Private Respondents were each issued letters on 5 October 2021 informing them of the reclassification by the termination of Class F and their absorption by promotion into the management Class P-6. The manner in which the communication of the reclassification was made to the Private Respondents is contested. It is contended by the Petitioner that when the letter was issued, the Private Respondents refused to accept the notice and despite not having taken on their new position, they accepted their pay cheques and received their pay slips, and which actions the Petitioner contend amounts to acquiescing to their employment being "reorgnaised" however these factual disputes are, as will be seen, inconsequential to the decision in these petitions

4.The Private Respondents initially maintained an application under Section 54 of the Act, 2012 before the National Industrial Relations Commission (NIRC) but which were apparently dismissed for want ofjurisdiction and whereafter the Private Respondents each issued notices as prescribed under Sub-Section (l) of Section 33 of the Act, 2012 and on receivilrg a reply fiom the Petitioner maintained Grievance Petitions bearing Case No. 4B(28)/21-S, Case No. 4B(29Y21-S and Case No. No. 4B(30y21-S before a Single Member of the

NIRC.

5.I have perused each of the Grievance Petitions maintained by each of the Private Respondents and the grounds in which read as hereinunder:

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(i0 CaseNo.4B(28)/2I-S

3.Thot the memorandun o/ the.yenlement dqte.l. 01.01.20?l execute.l h1: tha aompqnl, witll the petitionet does not provi(le anl pr{)yisi<)n that tt Techniul enplo.vee tihatll be cowerted into a non-lechnicul catJre and sttclt u cl u,t the Du ol the comDane i\ rutt otrlv illecal. u,tluv'lful .l perton u,ho hol u long time of 32 .veurs in the compary qs a technical emplol;ee, his conyersion and promotion into nontechnical cadre is an uct o/ highhandcdnes.'; and there tre certuit uller'ior and hitklen desictts on lhe Dq 0l' lhe fuctorv a min istration. either tu tunsfer lhe er fu, someh,l, ere else in lhe e his tetvtces

1.That ilioner is vorkinp as Onerotor in lrade F tehich is !he hichest in clossilied rrades a{ the c0mDany in technical sectitrn. The Petitioner throuch ordet 05. t0.2021 been orct ntohe 'ed taffi b P-6 his nosithn is shown as Plstrl Operator. ttlrich is os rl chs ultttch b'ith th scUlment lhown !rude 5 us senior oo , as oer the ificqti0n ol lhe u)mD(nv the Doi lion menlionel in the manaaemen I srouD is inlerio t in lhc ran k and oositio t lo thol of lhe Delil,'ioner which he w6 ulreult, wiel inp in srudc F. e sen0r oDe ofEt' head ooen or is mentioned in tlrade F hich is the

5.That ntemorandum of settlement k silenl aboul the Dn cedure and manncr lh how a Der$on who is in prode F shall be eonve etl int., mqnasenwnl cadre. The o ler dtted 05.10.202! ho,i\ heen pal\se(l in qfiitqry snd forcihle mqnner. The ottached lists bearine attucliment A a4d B are yem much clear about osv group (nd classificatit,n ol grades A to F...

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16 Tlwt th,:ra is juhs sccuritl. i tet.hni,,,tl yr<ttle hut th(e it nt, .m). lons .teLunt) tn ntatuNcntcnt cathc. ,t.t .vh h tltr rL,sfondents hitv" pdssed order dated 05. 10.2021, whith is arbitrarl, in nuture.', The grounds maintained in the grievance petition can be summarised as hereinunder:

(i)it was against the law to reclassiry the private Respondents from a class exclusive to workers into a management class;

(ii)the reclassification of private Respondents liom a workers class into the management class was contrary to the terms of the Memorandum of Settlement;

(iii)the entire act of reclassification was mala fide and the real intention on the part of the petitioner was to directly or indirectly terminate the employment of the petitioner;

(iv)the promotion is actually a demotion;

(v)there being no process identified for the reclassification of pay grcups as between workers and management in the Memorandum of Settlement rendered the entire process as arbitrary; and (vi) the lack ofjob security in the management crass rendered the entire act of reclassification as arbitrary.

6.The Petitioner conversely contends that they have every right to manage the Company and which right has not been limited by the terms of the Memorandum of Settlement as entered into between the petitioner and the Collective Bargaining Agent as t}re private Respondents and which as per Section 3 of the Memorandum of Settlement is clarified in the following terms:

The COMP,A N V retsins tll rishts of the re{ullinp ftom

moinlain employees discipline and production efJiciency, and (e) to delermine the means, methods, processes, materials, procedures and schedules of production.

shqll r ti!

Selt,'lement or olicable taws

on the basis of this provision, it was contended that as the petitioner had the right to "promote" and '.reclassify,' jobs, as well as the right to reorganise its class structure and which it had done without discriminating as between any member of the class. Regarding Pay Scales determined by the petitioner, reference can be made to Section 6 of the Memorandum of Settlement which reads as hereinunder:

tlsl

Section 6 - Compensation

The.Company has cla:sified jobs into 6 pay Groups within minimum and maaimum rates ofpay for each group as shown- in Altachment A.

The corresponding Job Titks that fatl wilh each respectiye pay Group are listed in Auachment "8". The Job Titles listings in Afia;hmenl'B are designed for the purpose of determining the rate of salary for persons assigned to these positions and shctll not be deemed to constitute any restrictions upon lhe Company's right to creale discontinue or modify, job positions. ..."

7.The Single Bench of the NIRC, on 20 September 2023, allowed Case No. 4B(28)/21-5, Case No. 4B(29)t2t-S and Case No. No. 4B(30)/21-S in rhe following terms:

"I heard the arguments of the learned counsel for both parties -hwe and perused the record. lt is very strange thot petilioners, salaiies are decreqsed in a conversiorlpromotion position, it is also worth mentioning that overtime is ctlso not allowed in the above-said conyels ion) position, moreover, the respondent,s failed to produce job description of the converted/promoted position. The were unable lo exDlain how lhe con ian oost became vqcanl, 'a,helher lhese hlv created or lhev became vacant due to lhe retircme t or Dromot ion of in Accordin lo lhe lt$ema rsndum ol emenL t,he lasl toD Dosit ion or srade k snd th ere ts na lion of lhe P-6 Dosition in the tul, emenl Cadre Moreover, the petitioners never wanted this position and they are not availing the perlc and privileg es of the P-6 is a self-created position to punish the employees, and t hey should not tale pdrt in tade unionism. The employees thal they should not take part in ffade unionism. Tle employees, that they should not take parl in trade unionism. The cotNersion/promotion of the paitioners was based on mqlalide _intention of the respondents to deprh,e the petitioners of the status of workmen, in fact, they wanted to curtail/restrain their irade union activities. Therefore, the instanl petition is allowed and the order dqted 05.10.202 is set aside. with no order as cost. File be consigned fo record room. "

The Petitioner being aggrieved maintained three appeals as against each of the orders passed in the Grievance Petitions bearing Appeal No. l2A (0Sy2023 e, Appeal No. 12A (09)/2023 e and Appeal No. l2A (10)l2OZ3 e and each of which were, on 25 January 2024, dismissed by the Full Bench of the MRC in the following terms:

"5: The learned counsel for the appellant while arguing his case submitted and reiterated in his arguments all the facts-which he reiterated at lhe time of submission ofwritten reply. On the other hond, learned counsel for the respondents supported the impugned order and requested that all three appeals be dismissed. l(hile going through the Memorandum of Se lement in Section 3 the respondint as we is the Employee Union agree on the folloving: ',The company retains ol! rights of management resuhing from ownership of tie Company and pertaining to the operation of business. These rights sha include (a) the right to direct and control the workforce i.e. Among others the rigit to hire, promote, demote, transfer, discipline, discharge, to eat; b discontinue, or reclassify jobs, to determine the numbir of employees needed" and the Memorandum of Settlement is also aiachid'with position classification and starting fron Crade-A, Grade B, Grade-C, Grae-D, Grade-C, and Arade-F. The rights of pay as per Secrion 6 is also mentioned in the attached ATTACHMENT ,A'. The pay group starts from Grade A and ends at Grade F and if a y,orker reaches on

seal.ing of basrc salary lhe sealing nay be considered lor .hi! -grade rer$Dn. Noryherq in rhe Memorandum of Ser errant, permified it is rl:ri,r!"

""r*lr "trtof the norkers rnal *e grqdation ctgsiii l6ffiffiffi7 o.nd orobablv ony:qrd in officer class E;;i;t";Zrr; th.

arguments y'e.posed a question to the leirned coursel [or the aooZ ant to appraise.abour the agrogran o/the corpany he coild rni iitiri,n" respect. Moreover, when he was asked whether lenc.n !!.tht: Ciide F y :oottsh:d wherher there is any qgreement of Sexlement reached Denee:n tL.t: LB A.nd the compan) in this respect, and whelher any oraer/taturcation has been made in respect o/ abolishinr Grade F ie y1s uyalte to bring any lerter show'hk ignorance ir' ,iir'-rrr'or") t rcugn he pteaded that the total strength in Grade F is 60. 04 our of 60 optld for YSS 48 accepted proroio, ,rd th, ,;;;;r1;;;i;i Srevance petitions. and thus the whole group came to ar rTd iir'i, unable to show ony document about thi 'i, abilishmrr, also.provided the breqkdown in this respect ,/Ciril i) oj the salary the oetilroner used ro.recetve in Crade F arul will receive in p_;;;d";i;";;';;;;, rhe:r salary is not reduced but rather enAonr"i Uori"i,;;;; l"';;;

alel tlal he rqise. in the salary due the m/lation ;rri; ;;r;; ,^":"^:": ,y the wor*ers.class o./ the company as well as *e olficei cnss. he was unable lo show us lhe salary of both classes.

! thg petitioners hqd the fieht ,o {orso theit ori i -[ii6ijie _.Admitledlv ptqmotion and tq wol*er can be forced for tearned counsel fo, th" appellart TaiteViifiiiiiow iirr"i"i ana non-reading of documentary euidence by the learned Sinel'e Memoer to warrant the interJerence of this Bench, there{ore, q The aoove-mentnned three appeals around meritless stqnd we)e dismissed.

lvo order qs to cost. The file be consigned to rhe record room after due complelion. "

8.The Pedtioner is aggrieved with each of these orders and maintains these Petitions on the following grounds:

(D that on the facts and in law the cause maintained by the private Respondents did not falr within the purview of a Grievance petition under Section 33 of the Act, 2012 as the petitioner had the right to ,.reclassigr,, jobs in terms of the Memorandum of Settlement and hence the petition was not maintainable;

(ii)that the Private Respondents, having not issued a notice, as required under Sub-Section (l) of Section 33 of the Act, 2012, prior to presenting their Crievance petition were prohibited in law from maintaining their Grievance Petitions;

(iii)that by accepting their salary, the private Respondents have acquiesced to the reorganisation and are estopped from maintaining the grievance petition;

(iv)that as the promotion of a person was not an unfair labour practice, the decision of the Full Bench of the NIRC, that the petitioners had a right to choose to forgo their promotion, was illogical;

Isl

(v)that if the Full Bench of the NIRC had come to the conclusion that the manner in which the private Respondents were being promoted amounted to an unfair labour practice, then such a claim was not justiciable in a Grievance Petition under Section 33 of the Industriar Relations Act 2or2 and rather was maintainable in a petition under section 67 read with Section 3l of the Act,2012;

(vi)that there had been a misreading of evidence inasmuch as on the basis of the evidence adduced the remuneration of the private Respondents had not been reduced;

The Petitioner relied on caselaw that has been detailed by my leamed brother Adnan-ul-Karim Memon, J in his order.

I The Private Respondents while supporting the atrovementioned orders had contended that:

(i)concurrent findings cannot be upset in proceedings under Article 199 of the Constitution of the Islamic Republic of pakistan,

(ii)there had been a breach of the Memorandum of Settlement as entered into between the petitioner and the Collective Bargaining Agent which was justiciable in a Grievance petition under Section 33 of the Act,2012; and

(iii)in the event that the private Respondents are ,.promoted,, they, not having the requisite security of retaining their employment, will inevitably be dismissed as an act ofretribution for forwarding the cause oftheir union.

The Private Respondents relied on caselaw that has been detailed by my leamed brother Adnan-ul-Karim Memon, J in his order.

10.i have considered the contentions of the petitioner and the private Respondents and have also perused the record.

I l. The Supreme Court of pakistan in the decision rep orted as United E ank Limited (UBtr ) vs, Jamit Altwed I has clarified the jurisdiction of this Court to interfere against orders passed by two fora concurrently and has held that:

ll6l

9.lt is q well settled exposition of law thar .1 right o/appeal is a right of entering into a superior court ond invoking its aid and interposilion to redress the error of the forum below. lt is essentially o coniinuation of the original proceedings as a vested. right of the litigant ro avail the relrldy o! on appeal provided [or appraisal and testiig the soundness of the decisiors and proceedings of the courts beloi. h is alwavs explicated and elucidated that rhe right ol appeal is not a mere mar;et of procedwe but is o substantive right. Wiile considering natters in appml, the appellate coutts may afiirm, modfy, reverse o|r yacate the decision o/ lou)er coutts. Fundamentally, the remedy of appeal is elected on the grounds of attack that t'he court beliw ionmitted q serious error in the yerdict on law and facts, including the plea of misreading or non-reading of evidence led by the partieiin ,upport i7 their contention. h is the duly of the Court and Tribunal b ;herc i the applicable law in letter ond spirit, tt is rhe foremost duty o/ the appellate court to delermine whether the orat and documentary evidence produced by the parties for and against during the trial .fortfies and adds force to the weight of decision or not. No doubt the Trial Court possesses the distinctive position to adjudge the lrusfworth iness of wilnes ses and cumulatiye effect of evidence led in the lis and, in turn, the appellate court accords deference to the frndings and such Jindings are not ove urned unless .found erroneous or defective. ll is not the domain or function of appellate court and/or High Court to re-weigh or interpret the eyidence, but they can examine whether the imp ugned judgment or order altains the benchmark of an unllav,ed judgment; and whether it is in consonance with the law and evidence and freefrom unju:t and unfair errors apparent on the face of rec a s b lower fors arc found t,'o be in of law or based ott und ttb defect gon lhe surface of record. it be as beins sOJ I of soncfi. thal il cannol be ed bv Nish fiinth e Corrs IUrE vested in it bt I th the fi 1973 as a measure in otder to salisfy ond feass fe bt hether lhe i ugned ion is w ilhin the law or nol lf it su uny set of mslaficet the Nish Caurt without beins imoressed or inlluenced bv the lhal the maller hed t. ttu lilu cufe leks! '

As is apparent the Supreme Court of pakistan has impressed that rhis Court exercising its jurisdiction under Article 199 of the constitution of the Islamic Republic of Pakistan, 1973, where it finds defects floating on the surlace of record in terms of an incorrect exercise ofjurisdiction, can interfere in concunent orders.

12.The provisions of Sub-section (l) of Section 33 of the Act, 2012, have recently been interpreted by the Supreme court of pakistan in the decision reported as L ed .4t {tMd

others2 whercin the scope of Section 33 of the Act,2012 has been clarified as

hereinundor:

2024 PLC 50

,2024 sMcR 719

14.5. Movingon to rhe third distinguishing feature inrroduced in IRA of 2-012, we rate the re-emergence of N1RC,2 bur this time having varied Junctions,r itlcluding one of an arbiter for resohting the indiyidual ot,n"_;rorker' asainst ttv u-pt"yn' o1 it"o^-p**iiiirt {!f".1!1* estabtishments. This is provided under Section jj which of IRi of 20t2.

reads as under; -

grievqnce arises.

(2)bri ts of the , the shall. w in fift, days the grte e, be ins bro usht to his nottce, com his decision ln t|f itinp to lhe worker.

(3)a worker brings his grievance to he todce of his Yltere employer through hk shop steward or collective bargain*g the employer shall, within seven days of the giewni ?gent, being brought to his notice, communicate his dicision in *r::*8. *. the shop steh)ard or as the car" noy be th" cot I ec t tve bargq i n i ng agent,

the worker or the shop steta)qrd m ay tqke thE matter lo his collective bargaining qgent or to lhe Commission or, as the case may be, the collective bargaining agent may take rhe mqtter to the Commission, a'nd where the matter is taken o rhe Commission, .t tve a l.t within the date of he before it as if such mqtter were qnt pute.

Provided that a worker who desires to so take rhe malter to the Commission sha!! do so within a period ofsa;ty days frotm the date of the communication of,he employir or,' as ihe'care yly be, Jron the expiry of rhe period mentioned in sub_section (2), or sub-section (3), as the case nay be.

(5)ln adjudicating and determining a grieyance under sub_ se:tton the Commts.sion sha go inlo alt the ? faas oj tie case and pass such orders as nqy be just and pioper m the ctrcumstqnces of ,he case.

(6)lfa decision under su|section (4) or an order under sub_ section (5) given bt the Commission or a decision in an appeal against such a decision or order is not given effeci io or complied with within seven days or within the-perioi specfted in sttch order or decision, *e aefculter siilt punishable with imprisonmeft ii for a term which may extend to y"or: or with fine. which may extend o ieventy/ive ?f thousand rupees, or with both.

(7)No person shall be prosecuted under sub_section (6) except on o complai in tyriting_

(a)by the workman if the order or decision in hisfatour is not implemented v,,ithin the period speclied therein; ir {b) b,.r\ Commission if an order or decision thereof is not conplied wih.

(8), Fouhe purposes of this section, workers having common gt'ieyance arising out of a common cause ajoint application to the Commission.

of action'moy*iki

(9)Any collective bargaining agent or any employer may apply to the Commission /or the enforcemenr if iny right guaranteed or secured to it or him by or under any law or iny awqrd or settlement.

(10)There shall be a Tripartite Council for review of grieyances of workers in the lslamabad Capital Territory comprising not less than three members each of the workers, employers and the Government: provied that the represe atives of the workers and the employers shall be nominated by the Goternnent after consuhation with registered trade unions and. employers' otganizations to be notilied in the O/frcial Gazeue.

e yreful. reading of rhe above provhion o/ IRA o/ 20t2 nakes it evident thal lhe worker' under the new legal dispensation had been pro.vided under tle said profision, ht o op ;ns n ieek redressal of his individual grievances regarding enforcement of his rights guaraiteed oy segurld to him by or under any law or any awid or-settlement. Fjrsily, can directly approach the employir in writing within 90 days of^ry the day on which llv couse of strch grievance aries, and the employer on receipt of such notice iy the aggrieved ,worker, has to communicate within l5 days, the decision on tie said notice. Secondly, a.'worker' may olso bring his grieyance to the notice o/ the enployer through his shop steward or collective bargaining ageni. t, sr"i cir", the employer shall, within seven days of reieip o] thZ grievance notice, communicate irs decision in writing to lhe shop stewaid or, as lhe case may.be, the collectiye bargaining age . t; both cases, where the emploler lails to communicate irs decision in the prescribed stipulated time or if the worker is dissatisfied wirh such decision, the ,worker. or the shop steward or the collective bargainjng aRent, as applicable.

mav approach N|RCfor the redressal of his grieianie.

Issue No, I whic,h is th.e comp.etent forum for redressal oJ individual grievance ofa worker, who has been lerminaled, removed.-reienched. Zischarged," or dismissed from eflplq)ment in a trans-ptovinciat establistuneit, and which law would apply in such cases;

15.ln view ofthe aboye discassion, to address the lirst issue, it is cleqr lhol the appropriate forum of redressal .for a workmon who is ed. discharsed- ot dismissed from establ it AJ under Section 33 of the IRA of 20t2. The said provision states that a 'worker' may bring his grieyance in re,spect of any right guaranteed or secured to him by or under any law. l.n the case at hand, the releyanl law for rhe purpose o/ right of reins tatement is Standing Orders of 1968, specifically Order l2 (3) Therefore, the contention of the learned counsel for the petitioner- c ompaq), qs to the naintainability of grievance petition of the resporulent No,I does not hold legal ground, as the remedy of reinstatemint being sought by respondenl No.l can be brought before NIRC, as an individual grie\)ance under Section 3J of IRA of 2012. This is further established by Section 54(h) of tRA of 2012 which includes one of the functions of NIRC to "deal with cases of indiyiduol grieyance in the manners prescribed in Section 33 " l6,,Thus,. it be safe to state that the compeknr forum _would ,worker/workmin' for the .of personal grievance of a redressal o/L nn"_ provincial establishment is NIRC, and lhe mode and manner oJ. enfo1cing any right guoranteed or secured to him by or under any lai has been provided under section 33 of the IRA of 2012, as has' been explained hereinabove. "

The scope of a grievance petition that can be maintained by a ,.worker,, or "workman" has been identified by the Supreme Court to be in respect of termination, removal, retrenchment or being discharged or dismissed and in respect of any right guaranteed or s€cured to him by or under any law and to

[1e]

which I would add, as per the language of that Section, to ,,any award or settlement."

13.A bare perusal of each of the Grievance petitions maintained by each of the Private Pespondents indicates that no reference has been made therein as to what rights guaranteed by anv law to the private Respondent have been violated by the Petitioner. while it has been clarified by the Supreme court of pakistan in tlie decision reported as hch Ishfao Khan and others3 that the expression .,any law,, used in the context of Section 31 of the Act, 2012 is a reference to legislation, it is apparent that not only the Private Respondents, but the Single Member of the NIRC and the Full Bench of the NIRC have also failed to identifu as to even one law which prohibits the Petitioner fiom either, cancelling a class of workers or from promoting the private Respondents from the "workers" or ..workmen,, class to management or from reclassi$ing a class of .'workers', or .,workmen,' as management or from rescinding a class all together or for that matter from refusing to accept a promotion. There being not statutory restriction and no award in play, the Private Respondents would therefore have to rely on the terms of the Memorandum of Settlement and in which again I am unable to find any restriction on the Petitioner to carry out any ofthe above referred activities. There being no right guaranteed or secured by any of the petitioners under the terms of the Memorandum of Settlement there would seem to be no basis for the NIRC to assume jurisdiction over the /rs under Sub-Section (l) of section 33 of the Act, 2012, The basis on which the Single Member of the NIRC and the Full Bench of the NIRC have attempted to asume jurisdiction of the grievance petition i.e., that the Petitioner can only act in such a manner when it is permitted under the Memorandum of Settlement and which right did not exist is, to my mind, clearly incorrect. Such a right is transparently found in section 3 of the Memorandum of the Settlement which permits the petitioner,.the right to hire, proglg demote, transfer, discipline, discharge, to reclass bs requirements and iob conte4lts" and which rights having not been exercised by the Petitioner in violation of ,,of th e exoressed visions of this Settle nl or anolicable laws" are clearly available to the petitioner. while the single Member ofthe NIRC and the Furl Bench of the NIRC placed reliance on Attachment A as referenced in section 6 of the Memorandum of Settrement, to state that those were the only classes that could exist in the workforce of the petitioner, it is to be noted that the language used in Section 6 ofthe Memorandum of Seulement does not prevent the Petitioner from discontinuing any of those classes or from promoting the Private Respondents and there therefore being no conflict as

2021 PLC 148

between Section 6 and Section 3 of the Memorandum of Settlement, I am clear when read together such a right to discontinue a class has been conferred on the Petitioner and which it can exercise along with the right to reclassiff a job of a person employed by the Petitioner; being rights retained by the petitioner .,a/trre Nt alt, o C' Ya rlain th operution of the business,, The attributio n of mens rea by the Single Member of the NIRC to the Petitioner also seems mispraced as that is clearry not the basis for the NIRC to assume jurisdiction ofa Grievance petition under Sub-section (l) of Section 3i of the Act, 2012 and which must be premised in respect of an employee's rcrmination, removal, retrenchment or being discharged or dismissed and in respect ofany right guaranteed or secured to him by or under any law, any award or settlement and which cannot be assumed singularly on the basis of any intention affributed to the Petitioner. Additionally, the finding by the Full Bench of the NIRC that the Private Respondents have a right to refuse promotion is also not premised on any statutory provision nor on any term of the Memorandum of Settlement and hence the interpretation that has been cast by the Single Member of the NIRC and the Furl Bench of the NIRC to assume jurisdiction is therefore incorrect. The Petitions are therefore liable to be allowed and each of the Grievance Petitions maintained by the private Respondents liable to be dismissed for want of jurisdiction.

14.For the foregoing reasons I am of the opinion that the orders dated 20 September 2023 passed by the Single Member of the NIRC in Case No.

4B(28y21-S, Case No. 4B(29)/21-S and Case No. No. 4B(30)/21 and the orders dated 25 January 2023 passed by the Full Bench of the NIRC in Appeal No. l2A (08)12023 Q, Appeal No. l2A (Og)t2023 e and Appeal No. l2A (10y2023 e cannot be sustained as the NIRC lacked jurisdiction under sub-section (1) of Section 33 of the Act,2012 to entertain each of the Grievance petitions bearing Case No. 4B(28)/21-5, Case No. 4B(29)/21-S and Case No. No. 48(30)/21 and each of which are dismissed with no order as to costs.

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JUDGE