2018 PLP 17 (PLC N)

ALI SAIN DINO METLO, MEMBER.

The appellant has challenged order, dated 28th February, 2015, of the Sindh Labour Court No.08, Larkana, camp at Sukkur, acting as incharge Presiding Officer, Sindh Labour Court No.07, Sukkur, returning, for want of jurisdiction, appellant's Application No.Nil of 2015, filed in the Sindh Labour Court No.07, Sukkur.

2. Briefly, the facts are that, on 20th February 2015, the appellant filed application in the Sindh Labour Court No.07, Sukkur, contending that the respondent No.01 (the Registrar of Trade Unions, Hyderabad) had wrongfully registered respondent No.03 (TNB Liberty Power Plant Workers Union) inspite of the fact that its members were employees of other companies (respondents Nos. 04 to 07) and not of the respondent No.02 (TNB Liberty Power Plant Limited). According to him, the respondent No.02 had challenged registration of the respondent No.03 in Constitutional Petition No.33 of 2011, in the High Court of Sindh, which was dismissed, allegedly on technical ground. In the month of January, 2015, the respondent No.01 determined, in a referendum, the respondent No.03 as collective bargaining agent (CBA) and issued such certificate on 22nd January, 2015. The appellant applied to the Labour Court to cancel registration of the respondent No.03 and consequently the CBA certificate issued to it.

3. The Labour Court, without issuing notice to the other side, treated the respondent No.02, as trans-provincial establishment and returned the application to the appellant for want of jurisdiction, observing that it had returned 13 other applications also on the same ground.

4. The order of the Labour Court is not tenable. The question whether or not the respondent No.02 was a trans-provincial establishment required factual enquiry. The application did not say that the respondent No.02 was a trans-provincial establishment. It was, therefore, not proper for the Labour Court to treat the respondent No.02 as a trans-provincial establishment without making factual enquiry. The reason given by the Labour Court that it had returned 13 other applications on the same ground is also not sustainable, as neither the facts of those cases were given nor its earlier decisions were binding upon it. A subordinate court can always be persuaded to change its earlier view, as its decisions do not carry any precedential value.

5. Jurisdiction of a court and maintainability of a case are to be determined initially on the basis of averments made in the plaint/application. The application stated that both the unions were registered and CBA certificate was issued by the provincial registrar, clearly showing that the establishment, according to the appellant as well as the respondent No. 01 (the Registrar of Trade Unions, Hyderabad), the respondent No.02 was not a trans-provincial establishment.

6. After holding that the finding of the Labour Court regarding trans-provincial nature of the respondent No.02 was premature, ordinarily the matter required remand for holding the enquiry. However, in the present case no useful purpose will be served to do so, as from the averments made in the application it is clear that the application is not maintainable. According to the section 12 of the Sindh Industrial Relations Act (SIRA), 2013, the Labour Court can direct cancellation of registration of a trade union only on complaint of the registrar and not on application of any opposing worker, trade union or employer.

7. Learned counsel for the appellant argued that the application was filed under section 43 read with section 24(8) and not under section 12, of SIRA. The argument is without any force, as both sections under which the application was filed were irrelevant. Under section 43, only CBA or employer can apply to the Labour Court for redressal of any grievance or enforcement of any right guaranteed or secured to it or him by or under any law or any award or settlement. After the issuance of certificate of CBA in favour of the respondent No.3, only the respondent No.3 or the employer could apply to the Labour Court under section

43. The appellant, who filed the application in his personal name, though describing him as general secretary of TNB Liberty Power Plant Employees Union, or for that matter even the union cannot claim to be a CBA, so as to avail the provisions of section 43. section 24(8) has also no relevance as it does not empower the appellant to apply to Labour Court for cancellation of registration of respondent No.

03. Specific provision prevails over general provision.

8. Normally, an opposing worker, union or employer seeking cancellation of registration of a union or CBA certificate files constitutional petition in the Hon'ble High Court for an appropriate writ to the registrar.

9. As stated by their advocate, Mr. S.S. Jahangir Khan, the respondent No. 02, after withdrawing their Appeal No. 03 of 2015, from this Tribunal, have already challenged registration of respondent No. 03 and issuance of CBA certificate to it, in Constitutional Petition No.1005 of 2015.

10. Initially, maintainability of a case and jurisdiction of a court are determined on the basis of averments made in the plaint/application. In the present case the appellant, in his application before the Labour Court, did not aver that the respondent No.02 was a trans-provincial establishment and the other side had not come to say otherwise. However, from the averments made in the application it was clear that the application was not maintainable and the relief claimed by the appellant could not be granted by the Labour Court or for that matter by the National Industrial Relations Commission. In such circumstances, the proper course for the Labour Court was to dismiss the application as not maintainable and not to return it. Accordingly, the application of the appellant before the Labour Court is dismissed as not maintainable and with this modification in the order of the Labour Court, the appeal is disposed of. JK/34/SLT Order accordingly.