1976 PLP 652 (PLC)

Laws Cited

Representation

• Z. H. Chishti for Respondent.
• It has been argued by learned Advocate for applicant Qazi Abdul Rasool that in previous matter the ground was that workmen members of the said Union are "employed in the administration of State" while in the instant application ground or cause of action is different viz. services incidental to the Armed Forces of Pakistan and as such decision in the previous applica tion cannot operate as res judicata. It is further contended that respondents are employees of Civil Aviation Department Government of Pakistan and they belong to service connected with or incidental to the Armed Forces of Pakistan and as such they cannot take benefits of Labour Laws in view of exception laid down in subsection (3) of section 1 of I. R. O. On the other hand it has been argued by counsel for respondents Mr. Chishti that the previous application was between the same parties and all grounds were taken in the previous matter during the course of arguments and this case relates to same cause of action and therefore the previous matters operates as res judicata. It has been further argued by him that the instant application does not relate to a different or new cause of action. Continuing his arguments be said if the present ground is a new one, he should have taken all grounds including this one at one time in that previous application. He cannot file applications regarding ingredients of section 1(3), I. R. O. piece by piece and bit by bit and cause multiplicity of applications. I find force in his arguments. No doubt in previous application ground was that they are deemed to be "persons employed in the administration of State." While in the instant application ground raised is that their services are incidental to Defence. In this matter Mr. Saeed Hassan Zaidi, Assistant Director (Administration) in Civil Aviation Department has filed an affidavit on behalf of Civil Aviation Department, although Civil Aviation Department is not a party in the present application as well as previous application. He has not been cross-examined by which veracity of his affidavit could be tested conse quently. Sworn affidavit is excluded from consideration. Registrar of Trade Unions has led no evidence at all. The burden of proof lay on him to establish that respondent s: services are incidental to the Defence. He has not discharged the burden. Mere employment in Civil Aviation Department would not debar them from forming a Trade Union. Admittedly they are Class IV employees. Mr. Chishti has referred to me 1972 P L C 296. In this authority learned Sind Labour Appellate Tribunal has observed that the intention of those who framed subsection (3) of section 1 of the Ordinance was not deprive the benefits of the Ordinance to ail persons who are serving the Government. Had it been so, they would have said so. It has l, been held that a person serving in "administration of State" should perform governing and managing functions in the Government so that he be accepted) from the applicability of the Ordinance. In the previous application the learned Presiding Officer, Court No. 2 has held that provisions of subsec tion (3) of section 1 do not apply in the case. I cannot sit as an appellate Court over his order. To re-instate respondents are IV Grade employees and there is no evidence on record that their duties are "Governing and Managing functions" in the Civil Aviation Department. The present application is clearly barred by principles of res judicata on the subject-matter as the same cause of action between them already been adjudicated in the previous application. The applicants cannot re-agitate and re-open the matter on the same cause of action. They cannot file a fresh application. I therefore hold that provisions of subsection (3) of section 1 of the I. R. O. are not applicable to this case. Consequently, application under section 10, I. R. O. is dismissed.

Headnotes / Summary

Judgment & Decree