1992 PLP 1153 (PLC(CS))

5. In the case of Rice Export Corporation of Pakistan Ltd. v. Sindh Labour Appellate Tribunal and 2 others 1983 PLC 1116 a learned Division Bench of Sindh High Court at Karachi has held:-- "By a careful examination of the schedule contained in the Companies Profits (Workers' Participation) Fund Act, there can be no doubt whatsoever that the respondent had no venue before the authorities constituted under the Act to obtain a direction to the employers for the creation of a Fund. In any case, respondent No.3 had invoked the jurisdiction, because the petitioner/Corporation had refused to establish a Fund, and, in case of such refusal, there was no other alternative available to the respondent Labour Union, except to make an application under section 34 of the Industrial Relations Ordinance for the purpose of enforcing a right which was guaranteed, or, secured to the workmen under the Companies Profits (Workers' Participation) Fund Act." However, this view in both the above cases was dissented from by a Full Bench decision of Sindh High Court at Karachi in the case of Karachi Pipe Mills Ltd. v. Sindh Labour Appellate Tribunal and 2 others 1984 PLC 1359 and it was held by their Lordships that `C.B.A.' could apply to Labour Court under section 34 of I.R.O., 1969, for the enforcement of any right guaranteed or secured to it by or under any law or any award or settlement and not to workman. Their Lordships further held that the rights guaranteed or secured to a worker under any law or any award or settlement have to be enforced in accordance with provisions of section 25-A, where Collective Bargaining Agent could not have collective bargaining for enforcement of any right guaranteed or secured to a workman by or under any law other than Industrial Relations Ordinance, 1969, such rights of workman have to be enforced in accordance with provisions of section 25-A and not under section 34.

6. It may be pointed out that the petitioners in the case of Rice Export Corporation of Pakistan Ltd. went in appeal against the decision of the High Court which decision of the Hon'ble Supreme Court is reported as 1986 SCMR 1010. The appeal of the petitioner was dismissed. However, the leave to appeal was granted by their Lordships only to consider the question whether the petitioner was an industrial undertaking or not as defined in the scheme framed thereunder the Act. The question as to whether the CBA could file an application under section 34 for the benefits of workmen was not considered by their Lordships. Mr. Ch. Muhammad Ashraf Khan, learned counsel for the appellant union has submitted that in the Memo. of Application for leave to Appeal, this point was raised by the petitioner in Para. No. 16 of the Memo. of Appeal by their Lordships of Supreme Court did not consider it worth considering.. The judgment is, however, silent on the. question as to whether this ground was held by their Lordships to be not worth-considering or whether it was not pressed by the petitioners. However, the fact remains that the Hon'ble Supreme Court did not consider this issue and did not mention it at all in the judgment. It is submitted by Mr. Chaudhri, that at least by implication the right of the union to move for the establishment of the Workers' Participation Fund was accepted as the decision of High Court was maintained by Supreme Court.

7. It may also be mentioned that the decision of the Hon'ble High Court in the case of Karachi Pipe Mills has also been challenged in appeal in the Supreme Court but it is still pending decision there. The present position, therefore, is that on the question as to whether the `C.BA.' can file an application under section 34 of the Ordinance to enforce the rights of workman in general the decision of the Full Bench of the High Court in the case of Karachi Pipe Mills still holds the field. This decision was also followed by this Tribunal in the case of Messrs Pakistan Burmah Shell Ltd. v. Wazir Ahmed and others 1989 PLC 576 and in Appeal No.303 of 1986, decided on 25-1-1990 in the case of M. Awami Autos Employees' Union v. Awami Autos Limited.

8. However, it is contended by Mr. Ch. Muhammad Ashraf Khan that the appellant had filed application under section 34 for the enforcement of its own right guaranteed under the Act and rules framed thereunder. It may be pertinent to note that under section 3(1) of the Act it is obligatory upon every Company to establish Workers' Participation Fund. Section 4(1)(a) of the Act is relevant which may be reproduced as under:-- "

4. Management of the Fund.-- (1) As soon as may be but not later than two months, after the establishment by a Company of a Fund under section 3, there shall be constituted a Board of Trustees consisting of following trustees, namely:- (a) two persons elected by the workers of the company from amongst themselves; (b) ....................... Rule 3(1) of the Companies Profits (Workers' Participation) Rules, 1971, which is also relevant, is also reproduced as under:-- "

3. Establishment of Board of Trustees.--(1) As soon as possible but not later than two months after the establishment of Fund by a company shall-- (a) intimate to the Federal Government the names, addresses and other particulars of the persons nominated by the company to represent the management on the Board to be constituted for the administration of the Fund; and (b) where there is no collective bargaining agent in relation to the company, hold elections amongst the workers to elect two of them to the Board by the method of single non-transferable vote: Provided that if a collective bargaining in relation to the company comes into existence subsequent to the election, the elected representative of worker shall cease to be trustees as soon as such agent has nominated two persons to represent the worker on the Board:" Mr. Ch. Muhammad Ashraf Khan has further relied upon section 22(12)(d) of the Ordinance which confers certain rights upon the `C.B.A.', which is reproduced as under:-- R. 22(12).-- The collective bargaining agent in relation to an establishment or group of establishments shall be entitled to

(a) ................................ (b) ..............................., (c) ................................ (d) nominate representative of workmen on the Board of Trustees of any welfare institutions or Provident Funds, and of the Workers' Participation Fund established under the Companies Profits (Workers' Participation) Act, 1968 (XII of 1968)." If all the aforementioned provisions of law are read together it cannot be denied that the `C.B.A.' has got a right to nominate two members on the Workers' Participation Fund which right it can enforce by filing an application under section 34 of the Ordinance.

8. It is submitted by Mr. A. Hafiz, learned counsel for the respondents, that this right would accrue to the appellants only if the Fund is established by the company and that it can move an application under section 34 only after the fund is established. To a question as to when the company refused to establish the fund, who could move the Labour Court, he submitted that this right only vested with the workman who could move Labour Court either individually or collectively under section 25-A of the Ordinance.

9. In fact these provisions of the law and this aspect of the matter was not considered in any of the aforementioned decisions of the Hon'ble High Court and the Hon'ble Supreme Court. However, while considering the right of the C.BA. which it could take to the Labour Court under section 34 in the aforementioned case of Karachi Pipe Mills the learned Full Bench at page 1359 has mentioned that under section 22(12)(d) of the Ordinance the collective bargaining agent in relation to an establishment or group of establishments was entitled to nominate representative of workmen on the Board of Trustees of the Workers' Participation Fund established under the Companies Profits (Workers' Participation) Act, 1968.

10. On the bare reading of the aforesaid provisions of the Act and Rules framed thereunder it will be seen that the right to nominate workers on the Board of Trustees automatically accrues to the `C.B.A.' on the establishment of Participation Fund, the establishment of which is also mandatory for any company or industrial undertaking as defined in the Act or scheme thereunder. By refusing to establish the fund it cannot be disputed that the aforementioned right of the C.B.A. has been denied. If the respondent is an industrial undertaking within the meaning of the Act and scheme thereunder, under the law it has to establish the Fund and thus confer upon the appellant the right to nominate two members on the Board of Trustees. Admittedly there is no other venue to seek the relief against the respondents for the establishment of Fund and the only venue is Labour Court. The only question that requires consideration is as to who should move the Labour Court. In my opinion, if the respondent is an industrial undertaking the Workers' Participation of Fund would be established by operation of law and consequently right on `C.B.A.' would also be conferred by operation of law. While seeking enforcement of right under section 4 of the Act, the appellant cannot be denied to seek relief of establishment of Fund which is incidental to and necessary for its guaranteed right to nominate the two members of Board of Trustees.

11. It is established law that Labour Laws are enacted for the benefits and welfare of labour and their interpretation is to be stretched in favour of the labour, of course not to the extent that it becomes repugnant to the law itself.

12. Mr. Ch. Muhammad Ashraf Khan also relied upon the case of Employees' Union v. Monnoo Motors and another PLD 1975 Karachi 811, which case was decided by late Chief Justice Tufail Ali A. Rahman and Justice Fakhruddin G. Ebrahim (as he then was). In that case it was held by their Lordships that `dispute relating to establishment of a workers' participation fund was an industrial dispute which Workers' Union was entitled to seek remedy either by way of adjudication and/or enforcement by Labour Court.'

13. There is yet another decision of the Division Bench of Sindh High' Court in the case of Messrs Jang Publication Ltd. v. Presiding Officer, Labour Court and another (1987 PLC 274) wherein it was held that provisions of the aforementioned Act did not provide any machinery for enforcement of right and no forum was provided for redress of grievance and, therefore, Labour Court would have jurisdiction under section 34 of the Ordinance to give a relief to the `C.B.A.' under the Act itself even if no industrial dispute existed between the parties. Their Lordships referred to the case of Karachi Pipe Mills and observed that the observation made by their Lordships in the said case were based on the law itself and there was no caval with observation made in this authority.

14. In view of the above discussions I hold that the appellants have right to file present application under section 34 provided the respondent is industrial undertaking which issue is yet to be decided by the learned Labour Court after giving parties chance to lead evidence I, therefore, allow this appeal, set aside the impugned order and remand the case back to the learned Labour Court fog deciding the issue as to whether the respondent was `Industrial Undertaking' a: defined in the Scheme under the Act.