All Pakistan OEC VS NIRC, etc

JUDGMENT SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

JUDICIAL DEPARTMENT

W.P.No.3485 of 2021 All Pakistan OEC (Overseas Employment Corporation) Staff Union Versus Full Bench, National Industrial Relations Commission, Islamabad and others Date of Hearing: 22.09.2022 Petitioner by: Mr. Muhammad Usman, Advocate, Respondents by: Ms. Komal Malik Joyia, Advocate for respondents No.3 and 4.

MIANGUL HASSAN AURANGZEB, J:- Through the instant writ petition, the petitioner, All Pakistan OEC (Overseas Employment Corporation) Staff Union, impugns the order dated 16.09.2021 passed by the learned Full Bench, National Industrial Relations Commission (“N.I.R.C.”), whereby the petitioner’s appeal against the order dated 15.07.2021 passed by the learned Member, N.I.R.C., was dismissed in limine primarily on the ground that the Staff Union of Overseas Employment Corporation could not agitate personal grievance of a workman by filing a grievance petition under Section 31 read with Section 54(e) of the Industrial Relations Act, 2012 (“I.R.A.”).

2.The facts essential for the disposal of the instant petition are that the Board of the Overseas Employment Corporation (“O.E.C.”), in its 68th meeting held on 17.03.2021, approved the creation of eight contractual posts (i.e., one post of Director, one post of Deputy Director, one post of Assistant Director, two posts of Assistants, and three posts of Data Entry Operators) for a fixed term of two years. Pursuant to the said decision, the O.E.C. issued Standing Order No.05/2021 dated 31.03.2021.

3.After the issuance of the said Standing Order, the O.E.C. published an advertisement dated 04.04.2021 in the newspapers inviting applications from eligible candidates for appointment against the said posts. Aggrieved by the O.E.C.’s said Standing

Order and the advertisement, the petitioner addressed notice dated 29.06.2021 to the Managing Director of the O.E.C. Through the said notice, the petitioner wanted the recruitment process pursuant to the said advertisement to be stopped and for the deputationists working in the O.E.C. to be repatriated to their parent departments, and the process for the promotion of staff which has been halted for many years, should be started. Since no reply to the said notice was given by the O.E.C., the petitioner filed a grievance petition under Section 31 read with Section 54(e) of the I.R.A. before the N.I.R.C. Vide order dated 15.07.2021, the learned Member, N.I.R.C. dismissed the said petition in limine by holding that a Collective Bargaining Agent (“C.B.A.”) could not file a petition for the enforcement of any right guaranteed or secured to a worker, and that it was for the worker to file a petition under Section 33 of the

I.R.A.

4.Against the said order dated 15.07.2021, the petitioner preferred an appeal before the learned Full Bench, N.I.R.C. Vide order dated 16.09.2021, the said appeal was dismissed in limine by holding that under Section 33 of the I.R.A., the aggrieved person has to file a petition and that a C.B.A. was not competent to file a petition on behalf of any individual for the redressal of that individual’s grievance. The said concurrent orders dated 15.07.2021 and 16.09.2021 have been assailed by the petitioner in the instant writ petition.

5.Learned counsel for the petitioner, after narrating the facts leading to the filing of the instant petition, submitted that the grievance agitated in the grievance petition was not an individual worker’s grievance but the grievance of all the employees of the O.E.C., who were entitled to be considered for promotion in accordance with clause 2.3.1 of the Administrative Manual issued by the Ministry of Overseas Pakistanis and Human Resource Development. He further submitted that ever since 2012, no promotions had taken place in the O.E.C., and that the O.E.C. was taking steps to appoint contract employees against the eight posts for which workers in the O.E.C. had a vested right to be considered

for promotion. Furthermore, it is submitted that under Section 20(1)(b) of the I.R.A., a C.B.A. is entitled to represent all or any of the workmen in any matter or judicial proceedings under the I.R.A.; that under Section 31(1)(c) of the I.R.A., an employer has been prohibited to discriminate against any person in regard to any employment, promotion, condition of employment or working condition on the ground that such person is, or is not, a member or officer of a trade union; that under Section 60 of the I.R.A., a C.B.A. can apply to the N.I.R.C. for the enforcement of any right guaranteed or secured to it or to the workers collectively by or under any law, award, settlement or decision; and that since the petitioner was seeking to enforce the right of the workers employed in the O.E.C. to be considered for promotion against the posts which were being filled by the O.E.C. by appointing contract employees, the impugned orders passed by the learned Member, and the learned Full Bench, N.I.R.C. were liable to be set-aside. Learned counsel for the petitioner prayed for the writ petition to be allowed in terms of the relief sought therein.

6.On the other hand, learned counsel for the O.E.C. submitted that the petitioner could not point out any right which had been guaranteed or secured to its members under any law or any award or any settlement so as to file a petition under Section 33(1) of the I.R.A.; that the eight temporary posts which had been filled by appointment of contract employees were not part of the sanctioned strength of the O.E.C.; that the O.E.C. did not have sufficient budget for the creation of regular posts; that the appointments made against the eight temporary posts are contractual in nature and the duration of the contracts is due to end on 08.08.2023; that the State of Kuwait has entered into a cooperation agreement dated 04.07.2020 with the O.E.C. due to which the creation of the eight temporary posts was necessary; that the duration of the agreement with the State of Kuwait is due to end on 13.07.2023; that it is well settled that promotion is not a vested right of any employee; that it is also well settled that the right to be considered for promotion is an individual right and not the collective right of workers; and that the

learned Member, and the learned Full Bench, N.I.R.C. did not commit any jurisdictional error by concurrently dismissing the petition filed by the petitioner. Learned counsel for the O.E.C. prayed for the petition to be dismissed.

7.I have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance. The facts leading to the filing of the instant petition have been set out in sufficient detail in paragraphs 2 to 4 above and need not be recapitulated.

8.Although Section 20(1)(b) of the I.R.A. entitles a C.B.A. to represent all or any of the workmen in any matter or judicial proceedings under the I.R.A., but the said provision does not entitle the C.B.A. to file a grievance petition in its own name on behalf of any worker or group of workers. Had the grievance petition before the N.I.R.C. been filed by any aggrieved workman, the petitioner could have represented him in the proceedings before the N.I.R.C. but could not have instituted the proceedings in its own name. In the case at hand, the grievance petition filed by the petitioner is silent as to the workmen in the O.E.C. on whose behalf the same had been filed.

9.As regards Section 31(1)(c) of the I.R.A., it prohibits the employer to discriminate against any person with regard to any employment, promotion, condition of employment or working condition on the ground that such person is, or is not, a member or officer of a trade union. In the case at hand, the eight temporary posts against which employees were appointed on contract basis, were not part of the sanctioned strength / posts of the O.E.C. employees or workers in the O.E.C. would at best have a vested right to be considered for promotion against such sanctioned posts where the rules provide for appointment to be made by promotion. Since the eight temporary posts were not part of the sanctioned strength / posts in the O.E.C., the question of discrimination between contract employees appointed against temporary posts and permanent employees holding posts which were part of the sanctioned strength / posts in the O.E.C. does not arise.

10.Section 60 of the I.R.A. entitles the C.B.A. to apply to the N.I.R.C. for the enforcement of any right guaranteed or “secured to it” or to the workers collectively by or under any law, award, settlement or decision. Learned counsel for the petitioner could not point out to any law, award, settlement or decision which prevented the O.E.C. from creating temporary posts or appointing contract employees against such temporary posts. The O.E.C. has been careful not to appoint contract employees against the regular / cadre posts which according to the rules have to be filled through promotion or direct recruitment.

11.Although paragraph 2.3.1 of the Administrative Manual of the O.E.C. provides for vacancies under each cadre / rank up to Grade- III to be filled by 50% quota for direct recruitment and 50% quota for departmental promotions but the said quota is only for appointment / promotion against the regular / cadre posts in the O.E.C. and not for temporary posts against which appointments are made on contract basis only for a period of two years.

12.Learned counsel for the O.E.C. has assured the Court that the O.E.C. has no intention of extending the contract period of the employees appointed against the said eight temporary posts beyond 08.08.2023 i.e., after the cooperation agreement dated 04.07.2020 between the State of Kuwait and the O.E.C. comes to an end. The petitioner cannot insist on its members to be considered for regular promotion against posts which are temporary in nature.

13.In the case at hand, a grievance notice had not been given to the O.E.C. by any worker aggrieved by the Standing Order No.05/2021 dated 31.03.2021 or by the advertisement dated 04.04.2021. Although such notice could be served through the C.B.A. but the grievance must be that of the worker.

14.In order to determine whether a C.B.A. can submit a grievance notice voicing the individual grievance of a worker to its employer under Section 33(1) of the I.R.A. or whether the C.B.A. can file a grievance petition before the N.I.R.C. regarding the dissatisfaction of a worker with the decision of the employer or the inaction on the part of the employer to take a decision on the grievance notice

under Section 33(4) of the I.R.A., an analysis of the said provisions is necessary. In this regard, Section 33(1) and (4) of the I.R.A. are reproduced herein below:- “33. Redress of individual grievances. – (1) A worker may bring his grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement for the time being in force to the notice of his employer in writing, either himself or through his shop steward or collective bargaining agent within ninety days of the day on which the cause of such grievance arises.

(4)If the employer fails to communicate a decision within the period specified in sub-section (2) or, as the case may be sub- section (3), or if the worker is dissatisfied with such decision, the worker or the shop steward may take the matter to his collective bargaining agent or to the Commission or, as the case may be, the collective bargaining agent may take the matter to the Commission, and where the matter is taken to the Commission, it shall give a decision within seven days from the date of the matter being brought before it as if such matter were an industrial dispute.” (Emphasis added)

15.The use of the words “either himself or through his shop steward or collective bargaining agent” in Section 33(1) of the I.R.A. and the use of the words “the collective bargaining agent may take the matter to the Commission” in Section 33(4) clearly show the intention of the Legislature to make a grievance notice or a grievance petition filed on behalf of a worker by a C.B.A. to be competent so long as the grievance notice is with respect to any right guaranteed or secured to the worker by or under any law or any award or settlement. In the case of Karachi Pipe Mills Employees’ Union Vs. Karachi Pipe Mills Limited (1992 SCMR 36), the Hon'ble Supreme Court, after referring to Section 25-A(1) of the Industrial Relations Ordinance, 1969, which is in pari materia to Section 33(1) of the I.R.A., held as follows:- “17. In case of an individual grievance of a worker in respect of pre- determined rights an application is to be made under section 25-A of the Ordinance. The procedure laid down in this provision has to be complied with before moving the Labour Court. The CBA has also been authorised to move the Labour Court in case of individual grievance if the worker has brought his grievance to the notice of his employer through his collective bargaining agent. Where the law has empowered the CBA to move an application to the Labour Court it has specifically stated so in the law itself. A construction of the law has to be made which is reasonable and is in consonance with the spirit of law. A foreign element cannot be brought into simply to make it more convenient to litigants.”

16.The grievance agitated by the petitioner in the instant case could have been the grievance of a limited number of workers in the O.E.C. who claim to be entitled to be considered for promotion against the temporary posts created through Standing Order No.05/2021 dated 21.03.2021, but there is nothing on the record to show that any worker or class of workers had required the petitioner to submit a grievance notice or a grievance petition on their behalf to their employer or the Labour Court, respectively. Such entitlement cannot be held to be a right guaranteed or secured collectively to all the workers in the O.E.C. or to the members of the petitioner. Since the grievance agitated by the petitioner (i.e., to be considered for promotion against posts of temporary nature) was not with respect to any collective right guaranteed to all workers, I am not inclined to interfere with the concurrent orders passed by the learned Member, and the learned Full Bench, N.I.R.C.

17.In view of the above, the instant petition is dismissed with no order as to costs.

(MIANGUL HASSAN AURANGZEB)

JUDGE

ANNOUNCED IN OPEN COURT ON 27.10.2022.

JUDGE

Sultan*