1970 PLP 591 (PLC)

A reply was filed on behalf of the respondent to the applica tion under consideration. In that reply it was contended that the application was not maintainable under section 34 of the Industrial Relations Ordinance, 1969 inasmuch as the petitioner Muhammad Yousaf Chughtai had not been deprived of any specific right but had been dismissed on proved charges of misconduct, after he had been afforded a full opportunity of defending himself and after all the requisite forma lities and the requirements of natural justice had been fully observed. It was further argued that although a collective bargaining agent was competent to raise an industrial dispute nevertheless the dismissal of an individual workman did not fall within the definition of an industrial dispute, hence the petitioner No.1 i.e. the West Pakistan Road Transport Workers' Union. Rawalpindi, could not invoke the jurisdiction of this Labour Court under section 34 of the Industrial Relations ordinance, 1969. It was further submitted on behalf of the respondent that Muhammad Yousuf Chughtai was a head store‑keeper at the time of his dismissal, hence he could not be considered to belong to the category of workmen, particularly when it was fact that the post of head store‑keeper was of a supervisory nature and only the departmental rules are applicable to it. The respondent also asserted that the petitioner No. .2 Muhammad Yousuf Chughtai was present when the statements of witnesses were recorded by the departmental enquiry officer. It was emphasized by the respondent that Muhammad Yousuf Chughtai was not only responsible for disregard of the rules and the procedure of the Road Transport Corporation but also for making fictitious entries in a statement relating to the purchases of spare‑parts and for providing undue benefits to the supplier and inflicting loss on the Road Transport Corpora tion. For all these reasons the respondent prayed for the dismissal of the application under consideration. I have heard the arguments of the respective representatives of the two contending parties and have examined the relevant record minutely. As the application under consideration purports to have been filed in this Court under section 34 of the Industrial Relations Ordinance, 1969, it would be rewarding to reproduce here its exact provisions, which are as follows:‑ "

34. Application to Labour Court.‑Any party to an industrial dispute relating to a matter arising out of any right guaranteed or secured to an employer or workman by or under any law for time being in force or an award or settlement may apply to the Labour Court for adjudication of the dispute." The main question for determination in this case is whether or not the case of the dismissal of Muhammad Yousaf Chughtai, petitioner No. 2, can be deemed to be an industrial dispute calling for adjudication by this Labour Court. The expression `industrial dispute' has been defined as follows in section 2 (xiii) of the Industrial Relations Ordinance, 1969:‑ "industrial dispute" means any dispute or difference between employers and employers or between employers and workmen or between workmen and workmen which is connected with the employment or non‑employment or the terms of employment or the conditions of work of any person." It is essential to bear in mind that the case of the dismissal' of any individual workman on a charge of misconduct cannot reasonably or legally be treated as being a dispute or difference between the employers and workmen which is connected with) the employment or non‑employment or the terms of employment or the conditions of work of any person. If such dismissal has been ordered by any employer in accordance with any depart mental rules or regulations then there is no legal warrant for regarding it as constituting an industrial dispute requiring adjudication by a Labour Court. The terms `employment' and 'non‑employment' that occur in the above‑cited definition of an 'industrial dispute' cannot by any stretch of the imagination be believed to include the dismissal of any individual workman on a charge of misconduct.‑ Quite apart from the above‑mentioned considerations I deem it essential to state in this context that the petitioners and their representatives have failed to convince me that the petitioner No. 2 Muhammad Yousuf Chughtai, who was serving as a store‑keeper under the respondent, i.e. the Road Transport Corporation, Lahore, at the time when his employment was terminated under the authority of the respondent was in fact a 'workman' within the definition of that term set‑out in section 2 (xxviii) of the Industrial Relations Ordinance, 1969. It is abundantly clear from the contents of the application under consideration that the petitioner was not dismissed or otherwise removed from his employment in connection with or as a consequence of any industrial dispute. On the other hand section 43 of the INDUSTRIAL RELATIONS ORDINANCE, 1969, contains the following mandatory provisions:‑‑ "

43. Raising of industrial disputes.‑No industrial dispute shall be deemed to exist unless it has been raised in the prescribed manner by a collective bargaining agent." The procedure for raising industrial disputes has been prescribed explicitly in sections 26, 27, 28, 29, 30, 31 and 32 of the Industrial Relations Ordinance, 1969. In view of the express provisions of these sections of the Industrial Relations Ordinance, 1969, it is, in my judgment, abundantly clear that the petitioner No. 1, i.e. the West Pakistan Road Transport Workers' Union (Regd.), Rawalpindi, which claims to be a collective bargaining agent in this case, has not raised any industrial dispute in the prescribed manner in regard to the dismissal of Muhammad Yousaf Chughtai, ex‑Store keeper. As a matter of fact I am not‑ inclined to lend any credence to the contention of the petitioners representative that the petitioner No. 1 viz. the West Pakistan Road Transport Workers' Union (Regd.), Rawalpindi, is a proper collective bargain ing agent in the present case. The expression 'collective bargaining agent' has been defined in the' below‑cited terms in section 2 (v) of the Industrial Relations Ordinance, 1969:‑ "collective bargaining agent", in relation to an establishment or industry, means the Trade Union of workmen which, under section 22, is the agent of the workmen in the establishment or, as the case may be, industry in the matter of collective bargaining." At this stage it is illuminating as well as instructive to refer to the fact that the term `collective bargaining' has been authoritatively defined in section 2 (iv) of the same Ordinance so as to mean "negotiation with a view to arriving at a collective agreement". Furthermore, the expression `collective agreement' has been defined in section (2) (iii) of that very, Ordinance in the following words:‑ "collective agreement" means an agreement in writing relating to the terms of employment and conditions of work of workmen employed in an establishment or industry which is arrived at between the employee of such workmen and a collective bargaining agent." In the face of all the above‑mentioned facts and the above‑cited provisions of the Industrial Relations Ordinance, 1969, there can be no doubt whatsoever that the petitioner No. 1, which has avowed itself to be a collective bargaining agent in the present case never conducted any negotia tions with the respondents i.e. the Road Transport Corporation, with a view to arriving at any collective agreement in writing in regard to the terms of employment of the petitioner No. 2 Muhammad Yousuf Chughtai, ex‑Store‑keeper. Indeed, no dispute has arisen in regard to, his terms of employment and the petitioner No. 2 cannot legally be regarded as being a workman at all. I~ any case since no industrial dispute has been raised in the prescribed manner by any collective bargaining R agent in regard to the termination of the employment of the petitioner No. 2 Muhammad Yousaf Chughtai, therefore, in view of the provisions of section 43 pf the Industrial Relations Ordinance, 1969, no such dispute can be deemed by me to have existed at all in the case under consideration. This being the true position of the matter neither the petitioner No.1 nor the petitioner No.2 can legally be treated as being a party to any industrial dispute requiring adjudication by this Labour Court. For all the above‑recorded reasons, this application for the re instatement of the petitioner No. 2 Muhammad Yousuf Chughtai is dismissed.