1976 PLP 719 (PLC)

Dates of hearing: 29th January and 2nd February 1976. The petitioners are officers of National Cement Industries Limited, Shantinagar, Karachi, while the second respondent is a workman employed in this establishment as an Assistant. He was also holding the portfolio of General Secretary of the Union run under the name and style of National Cement Industries Mazdoor Union. This Union is also Collective Bargaining Agent. On 24th April, 1973, a Works Council was constituted in the establishment within the meaning of section 24 of the Industrial Relations Ordinance, 1969, comprising of 20 members of which 10 members were workers' representatives while the remaining 10 members were representatives of the employers. The petitioner No. 1 was nominated, as Chairman of the Works Council while the petitioner No. 2 was one of the members of the Council representing the employers. One A. H. Naqvi representing the workers was nominated as Secretary of the Council.

2. For about four months after its formation the Works Council meetings were regularly convened but thereafter Mr. A. H. Naqvi, Secretary of the Council stopped convening the meetings. It is alleged that in March, 1974, the second respondent who was General Secretary of the said Collective Bargaining Agent Union issued a circular removing Mr. A. H. Naqvi from all the committees including the Works Council. After the removal of Mr. Naqvi no meeting of the Works Council was called and no request was made by any person in this behalf. Even the Chairman of the Works Council viz. petitioner No. I did not summon a meeting.

3. During the period when the meetings were not called various disputes had emerged between the management and the workers arid the same were pending decision. According to the petitioners, in February 1975 the second respondent got annoyed with the Management as it had not acceded to certain demands raised by him and as such on 22nd February, 1975 he filed a com plaint before the II Sind Labour Court alleging that for one year and nine months meeting of the Works Council had not been called by the petitioners and therefore they were liable to be prosecuted for non-compliance of the provisions of rule 65 punishable by rule 74 of the Industrial Relations (Sind) Rules, 1973. The rule 65 of the said Rules provides that the Works Council shall meet at least once a month, whereas rule 74 of the said Rules provides penalty for the non-observance of any rules including rule 65 and lays down that breach of any of the said rules shall be punishable with fine not exceeding Rs.

100. The complaint was however, resisted by the petitioners on the ground of incompetency as it did not fulfil the requirements of sec tion 13(b) of the Industrial Relations Ordinance, 1969. Subsection (b) of this section envisages that it would be one of the functions of the registrar of Trade Unions to lodge or authorize any other person to lodge complaint with the Labour Court or the National Industrial Relations Commission far appropriate action against a Trade Union for an alledged offence or any unfair practice or violation of any provision of this Ordinance. However, the Labour Court overruled this objection.

4. The learned counsel for the petitioners has raised various contentions of which the first contention is that under section 13(b) of the Industrial Relations Ordinance, 1969, only the Registrar was competent to institute a complaint and that a private person such as second respondent could not therefore file a complaint under section 13(b). Section 13 of the Industrial Relations Ordinance, 1969 is reproduced below for convenience of reference:- "Section

13. Powers and functions of the Registrar.-The following shall be the powers and functions of the Registrar:- (b) to lodge or authorize any person to lodge a complaint with the Labour Court for action against a Trade Union for any alleged offence or any unfair practice or violation of any provision of this Ordinance." A perusal of section 13(b) makes it sufficiently clear that in case of violation of any of the provisions of this Ordinance, the Registrar would lodge a complaint with the Labour Court. It has been described as one of his functions to prosecute a Trade Union or Management before the Labour Court in cases of unfair practice and for any violation of any provision of this Ordinance. Since the petitioner had failed to convene the meetings for more than one year and nine months and had thus contravened the provision of Rule 65 of the Industrial Relations (Sind) Rules, 1973 which requires that at least once a month Works Council meeting shall be convened as such the) were liable to be prosecuted. But second respondent could in no case file a complaint directly because an individual has not been authorized to lodge a complaint with the Labour Court On the other hand section 13 of the Industrial Relations Ordinance, 1969 which lays down the powers and functions of the Registrar provides the filing of the complaint by the Registrar in case of violation of any provision of this Ordinance. The contention of the learned counsel that the second respondent was not competent in these circumstances to file a complaint is fairly convincing and as such I hold that the complaint filed by the second respondent against the petitioners was legally incompetent. In case the second respondent desired to proceed against the petitioners he should have moved the Registrar to prosecute the petitioners for the violation of Rule 65 of the Industrial Relations (Sind) Rules, 1973. The learned counsel for the second respondent has drawn my attention to an unreported case (Constitutional Petition No. 266 of 1975), decided on 3rd April, 1975 by a Division Bench of this Court and argued that it has been held in that case that even an individual was competent to lodge a complaint against the Management under section 13 of Industrial Relations Ordinance, 1969 in case of non-observarce or contravention of any of the rules or the provisions of the Ordinance. I am afraid that the above referred case does not in all the hours apply to the facts of the instant case as both these cases are absolutely distinguishable.

5. The learned counsel for the petitioners has next argued that Rule 65 of the said Rules does not create any offence and that it is only directory in nature. He has also argued that an offence under the Rules cannot be considered to be an, offence within the meaning of the Ordinance, However, I would not like to deal with this and other points raised by the learned counsel for the petitioners as the petition is being allowed only on the first contention raised by the petitioners. These points shall remain open for discussion and the same can well be raised before the Labour Court if and when a fresh complaint is filed before it.

6. For the foregoing reasons I hold that the complaint filed by the second respondent against the petitioners was incompetent and therefore it was not maintainable. The petition is allowed but the parties are left to bear their own costs. Petition allowed.