Before the Hon’ble Member National Industrial Relations

Commission, Islamabad.

Case No. 4-A (367)/2000-L

Muhammad Saleem Akhtar etc.

Vs.
Pakistan Water & Power Development Authority and 2 others.

Petition U/s 22-A (8) (g) read with Sec-22-B (3) of I.R.O. 1969.
Written Arguments on behalf of respondent
No. 3, Kot Addu Power Company Ltd.

Respectfully Sheweth: -
Preliminary Objections: -

1. That petitioners never worked in the respondent No. 3

establishment as is evident from the para No. 3 of the petition
and 2 of the affidavit in evidence. Para No. 3 of the petition is
reproduced here: -

“3. That when in the year 1996, KAPCO was privatized

and the petitioners opted for Golden Handshake and
consequently they were voluntarily retired from
service.”

In para No.’s 1 & 3 of the affidavit in evidence, the

petitioner said as under: -

“1. That in June 1996, Kot Addu Power Company was

privatized and the persons working there were given offer
either to opt for KAPCO service or to opt for retirement on
the basis of Golden Hand Shake. All the petitioners opted for
retirement on the basis of Golden Hand Shake”.

“3. That the petitioners were retired while they were in

service of WAPDA, so they are entitled for all the benefits
 which the other WAPDA employees are entitled, i.e. pension,
free medical assistance, 50% free electricity”.

During the course of cross-examination the petitioner

admitted: -

From the aforesaid paras and also evidence on record, it

is abundantly clear that the petitioners not at all worked in the
respondent No. 3 establishment, therefore, committing of
unfair labour practice on the part of respondent No. 3 does not
arise at all.

2. That assuming for sake of arguments, not conceding that the

petitioners worked in the establishment even then the petition
U/s 22-A (8) (g) read with section 22-B (3) of I.R.O. is not
maintainable as there are no allegations of unfair labour
practice against the respondent No. 3 establishment. It is
worth mentioning here that in entire petition, the word unfair
labour practice has not been used.

3. That the petitioners in the petition and also in the evidence did
not mention any act of victimization on account of trade union
activities falling under section 15 of I.R.O. of the part of
respondent No. 3. It is well-established law that Commission
could not exercise its powers available to it U/s 22-A (8) (g)
read with sec-22-B (3) of I.R.O. when unfair labour practice
as described in Sec-15 had not been proved because
jurisdiction of the Commission was restricted to the cases
falling U/s 15 and nothing beyond that. In cases of
victimization for any reason, other than Trade Union
activities, the Hon’ble Commission would have no
jurisdiction. Reliance is placed on 1994 PLC 773, 1994 PLC
470, 1996 T.D. Labour 276, 1991 PLC 193, 1999 PLC 49 &
PLD 1988 SC 53.

4. That it is pertinent to mention here that the demand of the

petitioners like increase in pension, medical facility, provision
of electricity are terms and conditions of employment. The
employees of the respondent No. 3 establishment are civil
 servants for the purpose of Service Tribunal Act and they can
approach the proper forum as held.
Reliance is placed on 2001 SCMR page 1898.

5. That the demand of the petitioners in the instant petition is

that they should be given increase in pension on gross and not
on net pension. The respondent No. 3 is an independent legal
entity, private limited company, any increase in the pension is
approved by the Board of Directors of the company and
company is not bound to follow the WAPDA pattern. The
letter on basis of which they want increase in pension, is for
the civilian of Federal Government employee including
civilian paid from the Defence Estimates.

6. That as regards provision of free electricity and medical

facilities, clause 9 of staff agreement is specifically clear on
the subject matter, which is reproduced here: -

“Those employees who do not elect to transfer to

KAPCO on the effective date will cease their
employment with WAPDA and will be entitled to a
voluntary severance package namely “the severance
package” i.e. Golden Handshake as per All Pakistan
State Enterprises Action Committees’ Agreement with
the Government of Pakistan (1 + 4) agreement formula
viz where 1 stands for legal dues including pension and
4 stands of four basic salaries for each completed year
of service upto the Effective Date, by the new
management of the Complex within seven days of their
exercising their option for the Severance Package. For
purposes of Severance Package “illegal dues” mean (a)
for employees with service between 1 to 25 years,
gratuity equivalent to two months salary fro each
completed year of service in lieu of pension, or (b) for
employees with service exceeding 25 years, pension
dues under the WAPDA Rules. Those opting for the
Severance Package will not be entitled to any other
 benefits provided in this Agreement. The Severance
Package will be based on the last pay drawn by such
employees from WAPDA.

From the aforesaid para it is quite clear that the petitioners do

not stand entitled for free electricity and medical facilities;
whereas question of pension is concerned, they are being paid
by respondent No. 3 and increase is given according to the
sanction of Board of Directors.

7. That there are contradictory statements by the petitioners in

the pleadings and the affidavit in evidence. The petitioners say
that they stand entitled for free electricity and medical
facilities from WAPDA, whereas during the course of cross
examination they took plea that it is the responsibility of
respondent No. 3.

8. That the petitioner are paid pension regularly. An increase of

10% on gross pension and 25% on net pension were also
given to them with effect from 1.3.1997 and 1.7.2000 with the
approval of Board of Directors. The respondent No. 3 is
independent limited company and increase in pension
announced by Govt. of Pakistan and WAPDA after 27.6.1996
are not applicable to respondents.

9. That the respondent No. 3 is not liable to pay any benefit not
specified in staff agreement, therefore giving of free
electricity and medical facilities is not a responsibility of
respondent No. 3 as per clause 9 of the staff agreement.

In view of the above, it is respectfully prayed that

petition in hand may kindly be dismissed in the interest
of justice.

Submitted by: -
RIAZ-UL-HASSAN MALIK,
Advocate High Court,
Counsel for respondent No. 3.
6-A, Ahsan Colony, Suraj Miani
Road, Multan.
 Before the Hon’ble Member National Industrial Relations
Commission, Lahore.

Case No. 4-A (367)/2000-L

Muhammad Saleem Akhtar etc.

Vs.
Pakistan Water & Power Development Authority and 2 others.

Petition U/s 22-A (8) (g) read with Sec-22-B (3) of I.R.O. 1969.
Written Arguments on behalf of respondent
No. 3, Kot Addu Power Company Ltd.

Respectfully Sheweth: -

Brief facts giving rise to present case are that Kot Addu
Power Complex/Power Plant is owned by WAPDA. The Govt.
of Pakistan privatised the Complex by selling 26% of shares
in KAPCO to Strategic Investor & has agreed with Pakistan
WAPDA Hydro Electric Central Labour Union that WAPDA’s
regular employee at the Complex will be entitled to either opt
for employment with KAPCO or accept a voluntary severance
package as agreed in terms & conditions agreed between the
Privatisation Commission, Govt. of Pakistan & Pakistan
WAPDA Hydro Electric Central Labour Union (CBA)
applicable to WAPDA’s regular staff transferred with
WAPDA’s Thermal Power Stations and their privatisation
executed between G.O.P., WAPDA & WHECLU (the
“TERMS”). The staff agreement which was executed on
27.6.1996 and is Mark 6 on file is attached as ready reference
for this Hon’ble Court.
 It is pertinent to mention here that the WAPDA
employees as is clear above, were given the option either to
accept employment with KAPCO or receive severance
package. The afore-said four petitioners accepted the
severance package i.e. Golden Shake Hand. The petitioners
received the amount of severance package. The agreement for
regular employees was executed on 27.6.1996, which is called
“Staff Agreement” and all those employees who opted to work
for KAPCO, are receiving their benefits according to this
agreement. Since the petitioners opted for severance package,
therefore, they do not stand entitled for any other benefits like
free electricity and medical facility as per clause 9 of Staff
Agreement 27.6.1996.

1. That petitioners never worked in the respondent No. 3

establishment as is evident from the para No. 3 of the petition
and 2 of the affidavit in evidence. Para No. 3 of the petition is
reproduced here: -

“3. That when in the year 1996, KAPCO was privatized

and the petitioners opted for Golden Handshake and
consequently they were voluntarily retired from
service.”

In para No.’s 1 & 3 of the affidavit in evidence, the

petitioner said as under: -

“1. That in June 1996, Kot Addu Power Company was

privatized and the persons working there were given offer
either to opt for KAPCO service or to opt for retirement on
the basis of Golden Hand Shake. All the petitioners opted for
retirement on the basis of Golden Hand Shake”.

“3. That the petitioners were retired while they were in

service of WAPDA, so they are entitled for all the benefits
which the other WAPDA employees are entitled, i.e. pension,
free medical assistance, 50% free electricity”.
 During the course of cross-examination the petitioner
admitted: -

From the aforesaid paras and also evidence on record, it

is abundantly clear that the petitioners not at all worked in the
respondent No. 3 establishment, therefore, committing of
unfair labour practice on the part of respondent No. 3 does not
arise at all.

2. That assuming for sake of arguments, not conceding that the

petitioners worked in the establishment even then the petition
U/s 22-A (8) (g) read with section 22-B (3) of I.R.O. is not
maintainable as there are no allegations of unfair labour
practice against the respondent No. 3 establishment. It is
worth mentioning here that in entire petition, the word unfair
labour practice has not been used.

3. That the petitioners in the petition and also in the evidence did
not mention any act of victimization on account of trade union
activities falling under section 15 of I.R.O. of the part of
respondent No. 3. It is well-established law that Commission
could not exercise its powers available to it U/s 22-A (8) (g)
read with sec-22-B (3) of I.R.O. when unfair labour practice
as described in Sec-15 had not been proved because
jurisdiction of the Commission was restricted to the cases
falling U/s 15 and nothing beyond that. In cases of
victimization for any reason, other than Trade Union
activities, the Hon’ble Commission would have no
jurisdiction. Reliance is placed on 1994 PLC 773, 1994 PLC
470, 1996 T.D. Labour 276, 1991 PLC 193, 1999 PLC 49 &
PLD 1988 SC 53.

4. That it is pertinent to mention here that the demand of the

petitioners like increase in pension, medical facility, provision
of electricity are terms and conditions of employment. The
employees of the respondent No. 3 establishment are civil
 servants for the purpose of Service Tribunal Act and they can
approach the proper forum as held.
Reliance is placed on 2001 SCMR page 1898.

5. That the demand of the petitioners in the instant petition is

that they should be given increase in pension on gross and not
on net pension. The respondent No. 3 is an independent legal
entity, private limited company, any increase in the pension is
approved by the Board of Directors of the company and
company is not bound to follow the WAPDA pattern. The
letter on basis of which they want increase in pension, is for
the civilian of Federal Government employee including
civilian paid from the Defence Estimates.

6. That as regards provision of free electricity and medical

facilities, clause 9 of staff agreement is specifically clear on
the subject matter, which is reproduced here: -

“Those employees who do not elect to transfer to

KAPCO on the effective date will cease their
employment with WAPDA and will be entitled to a
voluntary severance package namely “the severance
package” i.e. Golden Handshake as per All Pakistan
State Enterprises Action Committees’ Agreement with
the Government of Pakistan (1 + 4) agreement formula
viz where 1 stands for legal dues including pension and
4 stands of four basic salaries for each completed year
of service upto the Effective Date, by the new
management of the Complex within seven days of their
exercising their option for the Severance Package. For
purposes of Severance Package “illegal dues” mean (a)
for employees with service between 1 to 25 years,
gratuity equivalent to two months salary fro each
completed year of service in lieu of pension, or (b) for
employees with service exceeding 25 years, pension
dues under the WAPDA Rules. Those opting for the
Severance Package will not be entitled to any other
 benefits provided in this Agreement. The Severance
Package will be based on the last pay drawn by such
employees from WAPDA.

From the aforesaid para it is quite clear that the petitioners do

not stand entitled for free electricity and medical facilities;
whereas question of pension is concerned, they are being paid
by respondent No. 3 and increase is given according to the
sanction of Board of Directors.

7. That there are contradictory statements by the petitioners in the

pleadings and the affidavit in evidence. The petitioners say that
they stand entitled for free electricity and medical facilities from
WAPDA, whereas during the course of cross examination they
took plea that it is the responsibility of respondent No. 3.

8. That the petitioner are paid pension regularly. An increase of

10% on gross pension and 25% on net pension were also given to
them with effect from 1.3.1997 and 1.7.2000 with the approval of
Board of Directors. The respondent No. 3 is independent limited
company and increase in pension announced by Govt. of Pakistan
and WAPDA after 27.6.1996 are not applicable to respondents.

9. That the respondent No. 3 is not liable to pay any benefit not
specified in staff agreement, therefore giving of free electricity
and medical facilities is not a responsibility of respondent No. 3
as per clause 9 of the staff agreement.

10.That the contention taken in para 6 of the written arguments on

behalf of the petitioners that the affidavits of four petitioners
were filed, but only one petitioner Mr. Muhammad Saleem
Akhtar was cross-examined, is correct to the extent that only Mr.
Saleem Akhtar appeared in the Witness Box, so the question of
cross-examining of other three witnesses does not arise. It is also
pertinent to mention here that these three petitioners did not
appear in the witness box, so their affidavits cannot be considered
as their evidence. The relevant statement of the counsel for the
petitioners, while closing the evidence is reproduced hereunder: -
11.That it is pertinent to mention here that during the course of
cross-examination by the counsel of respondent, when
specifically asked as to what type of unfair labour practice the
respondent No. 3 had committed, the P.W.1 replied as under: -

In view of the above, it is respectfully prayed that

petition in hand may kindly be dismissed in the interest
of justice.

Dated: _______ Submitted by: -

RIAZ-UL-HASSAN MALIK,
Advocate High Court,
Counsel for respondent No. 3.
6-A, Ahsan Colony, Suraj Miani
Road, Multan.