1999 PLP 471 (PLC)

3. To appreciate the order, impugned in this Tribunal, it seems proper 'to reproduce the legal objections taken in the reply statement, which read as under:‑‑ "(a) The respondent No.3 according to the applicant's own pleadings came in existence in July, 1998 whereas the applicant union according to Annexure‑A/1 was registered on 26‑3‑1994 and was certified as C.B.A. on 6th June, 1994. Since the respondent No.3 company was even not in existence at the time when the union was registered or was granted certificate of C.B.A, this union cannot claim to be the Union either in relation to the workmen employed by the respondent No.3 muchless can claim the status of C.B.A. in relation to respondent No.3 (b) That the petition further under section 34 is not maintainable in Law as according to Annexure‑A/2 purporting to be certificate of C.B.A., the applicant Union is a C.B.A. in the establishment of M/s. Khan & Company and not in relation to the respondent No.3. The petition on this additional ground filed by the applicant against respondent No.3 is not maintainable in law. (c) That the petition under section 34 is also not maintainable in law as a Trade Union can only be formed and registered in an establishment which is identifiable alongwith its employer 'Engro Chemical Contractors' is not an establishment identifiable nor the employer is identifiable as Contractors and Employers keep on changing. So long as the bond of relationship between an employer and employee would not establish, there cannot possibly be a Trade Union formed in that establishment. The Registration Annexure‑A/1 of the applicant union effected as early as 26th March, 1994 was in relation to M/s. Khan & Co. Contractors as Annexure A/2 reveals and, therefore, even on this additional ground the petition filed by the applicant is not maintainable. (d). That the petition is also not maintainable in law as in terms of section 34 of I.R.O., 1969 a petition can only be filed for enforcement of right guaranteed and secured to any individual person. (e) Application under section 34 calls for enforcement of pre determined and pre‑existing rights. These 13 persons according to the applicant's own pleadings were never in the employment of the respondent No. 3 nor did the respondents were agreed to accept these 13 persons in its employment. The bond of relationship of employer and employee between these 13 persons and respondent No. 3 having not been established, there is no occasion for claiming enforcement of right under any law, settlement or award."

4. A bare reading of the above objections shows that the objections, taken under sub‑para. (a), (b), (c) and (e) are mixed questions of facts and law and can be answered only after the evidence is recorded. However, as regards objection taken by the applicant under sub‑para. (d), it seems to be a pure question of law whether a Collective Bargaining Agent can file an application under section 34 of I.R.O., 1969 seeking redress of the grievance of individual workers. According to Mr. Mahmood Ghani, the Union is not competent to file such application in its own name seeking redress of the grievance of individual worker. For this plea, reliance is placed by him on a Full Bench Judgment of the High Court of Sindh, reported as Karachi Pipe Mills Ltd. v. Sindh Labour Appellate Tribunal and 2 others (1984 PLC 1359) which supports his plea. This very case went up in appeal before the Hon'ble Supreme Court reported as Karachi Pipe Mills Employees' Union, Karachi, v. Karachi Pipe Mills Ltd., Karachi (1992 SCMR 36). The following observations of the Hon'ble Supreme Court is significant to be noticed:‑‑ "

11. Another point to be noted is that the word 'it' mentioned in section. 34 refers to Collective Bargaining Agent and the word 'him' refers to the employer. This interpretation has also been made by the High Court. The word 'workman' used in section 34 was omitted by Act (XXIX) of 1973. Before this amendment, a workman could also make an application under section

34. As such right had already been guaranteed to an individual workman, the amendment was made to harmonise the, two provisions."

5. I am, therefore, convinced that the question about the maintainability of the application under section 34 itself was pure question of law. I felt inclined to remand the case for the decision of Labour Court at Sukkur, but Mr. Mahmood Ghani submitted that it will multiply the applicant's agony to pursue the case in the Labour Court. He refers to 1.999 SCMR 230 that this Court is under no obligation to make order of remand.

6. Looking to the observations, made by the Hon'ble Supreme Court, while affirming the judgment of the Full Bench of the High Court of Sindh, it seems clear that no such application under section 34 of I.R.O., was maintainable. I am, therefore, of the view that when the preposition of law is clear, as observed by the Apex Court of Pakistan, it will amount to multiply the proceedings, if the case is remanded. I, therefore, set aside the order of the Labour Court at Sukkur and accept the revision application.

7. The affectees i.e. the 13 workers, for whom the redress has been sought by an application filed by the respondent Union under section 34, will be at liberty to file the individual grievance applications in the Labour Court, subject to all just exception.

8. On dictating the last part of the judgment, Abdul Jabbar, General Secretary of the respondent union submitted that the 13 workers have already filed separate applications under section 25‑A of the I.R.O., after three months of the filing of the said application under section 34 of I.R.O., 1969.

9. Be that as it may, a copy of this judgment may be sent immediately to the Labour Court at Sukkur. Announced in open Court, this 12th day of April, 1999. H.B.T./262/K/Lab. (Trib.) Revision accepted.