1976 PLP 617 (PLC)

S. M. Yaqoob for Respondent. This application under section 34 of the I. R. O., 1969 was filed by the applicant-Union on 9-2-1973 in the learned Fifth Sind Labour Court. On 27-2-1974 the application was transferred to the learned Second Sind Labour Court, who by its Award dated 18-3-1974 disposed of the application and reliefs prayed for were granted to the applicant-Union. The Award dated 18-3-194W was set aside by the High Court of Sind & Baluchistan, Karachi vide its order dated 21-4-1975 passed in Constitution Petition No. 274 of 1974 and the case was received in this Court from the learned Second Sind Labour Court on 20-8-1975. On 10-12-1975 an application was filed by the respondents praying that the application under section 34 of the L. R. O. 1969 be summarily rejected as the respondents Establishment which deals in distribution and marketing of oil ~t products such as Kerosine Oil, L. D. O., Furnace Oil and lubricants was an Essential Service and Labour Court has no jurisdiction at the time when the application was filed and all the proceedings in different Labour Courts were without jurisdiction and ab initio void. The respondents subsequently filed photostat copies of the Gazettes of Pakistan, Extraordinary dated 28-11-1972 31-5-1973, 30-11-73, 29.5-1974, 29-11-1974,28-5-1975 and 14-1-1976 to prove that services in the Establishment Organization dealing in distribution and mar keting of Oil were declared Essential Services under section 3 of Pakistan Essential Services (Maintenance) Act with effect from 2-12-1972 and continue as such till today and in view of this position he contended that on 9-2-1973 the learned Fifth Sind Labour Court had no jurisdiction to entertain the above application and all the proceedings before the various Labour Courts are without jurisdiction and ab initio void. In support of his contention that the jurisdiction of the Labour Courts is ousted in relation to petitions in respect of all grievances, disputes and matters arising out or connected with the services in a concern to which Essential Services Act and the Rules made thereunder and such petition can only be filed before the Chairman and the Member of N. I. R. C. He relies on the following cases:- (i) 1973 P L C 94. (ii) 1975 P L C 521. (iii) P L J 1975 Tr. C. (NIRC) 122(2). I have gone through the above-cited authorities and all of them are applicable to the present case on all fours. Mr. 1-lameed Siddiqui, the learned Advocate for ins applicants contended that the respondents are not dealing in distribution or marketing of oil and merely carry and transport oil and petroleum products of their principals, Messrs Esso Standard Incorporated, from the terminals of the principal to the customers and agents of their principal anal as such are only transporters. He further contended that the oil and other petroleum products carried and transported by the respondent do not belong to them neither they are at liberty to sell or dispose them of. The essence of distribution and marketing is that a person should have absolute control over the commodity or com modities in: order to sell or dispose them of in the market according to his own choice and at his discretion. 1n girder to decide whether the respondents are dealing in the distribution and marketing of oil and petrolium products or are merely transporters on behalf of their principal, Messrs Esso Standard, it is necessary to examine the agreement entered into between the respondents and Messrs Esso Standard Incorporated, a photostat copy of which has been produced by the respondents Clauses 2, 3, 6, 7 and 8 of the said agreement make it crystal clear that Messrs Esso Standard supply such quantities of the Oil products to the respondents as may be requested by them and deemed expedieca by Messrs Esso at suvh prices determined by Messrs Esso against payment in cash of the price r_:f tae oil products supplied to the respondent and thereafter the respondents ars: at liberty to sell all such quantities of the said products as are in their possession and control to their customers at such rates or prices fixed by Messrs Esso. These clauses make it abundantly clear that the respondents purchase oil and other petrolium products from Messrs Esso, acquire proprietory rights over the said products after payment of prices in cash of the said products and thereafter it is at the discretion and desire of the respondent to sell the said products to their customers at any time they choose. I am, therefore, unable to accept the contention of the applicant that the respondents are merely engaged in transportation of oil products and are not engaged in distribution and/or marketing of oils products. In view of the above discussion I hold that the Fifth Sind Labour Court had no jurisdiction to entertain and adjudicate upon the matter in dispute nor this Court has jurisdiction to proceed with the matter and, accordingly, the application under section 34 of the Industrial Relations Ordinance, 1969, is dismissed. Announced in open Court.