1978 PLC 213 (PLP)

(a) Industrial dispute

Res judicata, principle of-Applicable only, when a matter, decided previously on merits. Mohammad Aslant v. District Manager, Government Transport Service, Multan 1973 P L, C 355 and Cooperative Textile Mills, Khanewal. Sh. Ghulam Hussain Naqvi 1969 P L C 409 ref.

S. 34 read with Ss. 22 (12) & 8(7)--Application for enforcement of right guranteed or scoured to C. B. A..--Right of an individual to an office of Union--Section 34, held, cannot be pressed into service for enforcement of such right.' Petitioner in person. United Union of P. W. R. Workers, hereinafter, referred to as the petitioner-Union has brought the under-consideration application under section 34 of the Industrial Relations Ordinance, 1909 through its General Secretary Ch. Umer Din against the respondent, namely, Shaukat Ali Mir, son of Barkat Ali. The relief claimed through the present petition is that the respondent be restrained from posing himself as General Secretary of the petitioner-Union. 2. It is contended in the petition that Ch, Umer Din leas always been elected unopposed a9 General Secretary of the petitioner-Union and this year too on 23rd March he had been elected unopposed as the General Secretary but the respondent who wad not even an ordinary member of the petitioner-Union posed himself as General Secretary of the Union and was thus blackmailing the Railways Officer and innocent railways workers. 3. The respondent besides resisting the application on merits pleaded inter alts that the application under section 34 of the Industrial Relations Ordinance was not maintainable because the allegations in the application and the relief claimed did not seek the enforcement of any guaranteed or secured rights of the C. B. A. but it tended to advance the personal cause of Ch. Umer Din. It has also been maintained by the respondent that in the year 1971 Ch. Umer Din had Moved the Civil Court for getting relief which is being sought from the present petition but he failed and his appeal before the District Judge was also dismissed as withdrawn and, therefore, the present application was passed in view of the principle of ref judicata. 4. Parties in the first instance were asked to lead evidence if any and to address the Court in respect of preliminary objections, which are sought to be disposed of by the present order. 5. No evidence has been led by the parties about the preliminary objections although they have been heard at length. As regards the plea of ref judicata raised by the respondent, it is observed that since no evidence has been led by the respondent about the previous case of Ch. Umer Din which is alleged to have been dismissed. It is, therefore not possible to conclude that previous case was dismissed on. merits or on preliminary grounds. In Mohammed Aslam v. District Manager, Government Transport Services Multan (1973 P L C 365) and in Co-operative Textile Mills Khanewal v. Sh Ghulam Hussain Naqvi (1969 P L C 469) it has been held by the Appellate Tribunal of the Punjab that the res judicata is applicable only when a matter has been decided grievously on merits. 6. In view of- the above, it is concluded that the preliminary objection raised by the respondent involving the plea of res judicata is overruled. 7. So far as the objection of the respondent about the non maintain ability of the present petition is concerned, it is provided in section 34 of the 1. R. O. 1969 that any C. B. A. may apply to the Labour Court for the enforcement of any right guaranteed or secured to it by or under any law or any award or settlement. This means that an application under section 34 of the I. R. O. is maintainable when a right guaranteed or secured to the C B. A is sought to be enforced. In the present case, the right sought to be enforced is the personal right of Ch. Umer Din inasmuch as he seeks a declaration that he is the General Secretary of the petitioner Union and that the respondent be restrained from posing himself as General Secretary of the petitioner-Union. This right certainly is a right of an individual to an office of the union and not a right of the C. B. A. itself For instance we may make reference to the provisions of section 22 (12) o the I. R. O. where certain rights of C. B. A. in relation to an establishment are enumerated. In case there is any dispute in relation to the change oil officer of the Trade Union an application or appeal as the case may be, filed by any officer or the member .of the Trade Union under section 8(7) of the I. R. O. section 34 bid however cannot be pressed into the service for this purpose. 8. In this view of the matter, we conclude that that under considera tion petition is misconceived and is not legally competent. It is accord ingly dismissed.