2018 PLP 80 (PLC)

ALI SAIN DINO METLO, MEMBER.

The applicant has challenged order, dated 10th February, 2016, of the Sindh Labour Court No.07, Sukkur, refusing to join him as party in grievance petition, No.04 of 2015, filed by the respondent No.02 (Messrs Engro Fertilizers Contractor Off-site Mazdoor Union, Daharki) challenging cancellation of its collective bargaining agent (CBA) certificate.

2. Briefly, the facts are that, on 31st July, 2012, the respondent No.02 got itself registered with respondent No.03 (Registrar Trade Unions Hyderabad) to represent workers employed in Messrs Mian Zubair & Co. Off-site Contractor Engro Fertilizer Dharki.

3. On 6th July, 2015, the respondent No.02, obtained certificate of CBA for the establishment of Messrs Al-Fuqra Traders Contractor for providing Security Services at new Off-site Engro Fertilizer Limited, Daharki.

4. On application of the applicant, the sole proprietor of Messrs Al-Fukra Traders, the respondent No.3, cancelled the CBA certificate on 9th October, 2015.

5. The respondent No.2, challenged the cancellation in the Labour Court in grievance petition No.04 of 2015, without joining the applicant as party, though the certificate was cancelled on his application.

6. The Labour Court refused to join the applicant as party for the reason that it had no power to join any intervener as party.

7. Neither the reason assigned by the Labour Court is tenable, nor the grievance application of the respondent No.2, before the Labour Court is maintainable.

8. Section 46(2) of the Sindh Industrial Relations Act, 2013 (SIRA), provides that for the purpose of adjudicating and determining any industrial dispute, the Labour Court shall be deemed to be a Civil Court and shall have the same powers as are vested in such court under the Code of Civil Procedure, 1908 (C.P.C.). Rule 10 of Order I, C.P.C. provides that Court may, at any stage, on or without application, add any person as party whose presence before the court be necessary to adjudicate upon and settle all the questions involved in the dispute. In presence of such enabling provisions, the Labour Court erred in saying that it had no power to add a person as party to the proceeding. Even otherwise, as held by the Hon'ble Supreme Court in the case of H.M. Saya & Co. v. Wazir Ali Industries (PLD 1969 SC 65), 'a court should proceed on the principle that every procedure which furthers administration of justice is permissible even if there is no express provision permitting the same' and 'ought not act on the principle that every procedure is to be taken as prohibited unless it is expressly provided for'.

9. The respondent No.2 obtained the CBA certificate for the establishment of the applicant, though it was registered for Messrs Mian Zubair & Co. Off-site Contractor Engro Fertilizers, Daharki. In the case of Karachi by Road Workers Union (2005 PLC 142 Karachi), it was held that a union registered for one establishment cannot be certified as CBA for any other establishment.

10. Learned counsel for the respondent No.2, relying upon the case of Essa Cement Industries Workers' Union (1998 SCMR 1964) argued that neither the respondent No.2 was obliged to make the applicant as party nor the Labour Court was obliged to hear the applicant for the purpose of restoration of the CBA certificate. The argument is simply specious. The Hon'ble Supreme Court, while observing that registration of a trade union cannot be cancelled or challenged merely on the ground that the employer or a trade union already existing were not given opportunity of hearing or an objection raised by them was not considered before taking decision of registration, clearly stated that nothing prevented the Registrar from seeking assistance from the employer or a union already existing. In no way the Hon'ble Supreme Court can be said to have prevented the Registrar or a court form hearing the employer or a union already existing in the matters relating to registration or cancellation of registration of a trade union or grant or cancellation or restoration of CBA certificate. For the purpose of registering a union or certifying it as CBA, the Registrar is required to satisfy himself, inter alia, that the members of the union are workers of the concerned establishment and for the purpose of CBA certificate they are not less than 1/3rd of the total number of workers in the establishment. For this, the employer is required, under Section 24(6)(a) SIRA, to furnish list and particulars of his all workmen to the Registrar. In the present case, the CBA certificate obtained by the respondent No.2 for the establishment of the applicant was cancelled on his application. It was not fair on the part of the respondent No.2 to seek restoration of the certificate behind the back of the applicant.

11. The contention of the respondent No.2 before the Labour Court as well as before this tribunal is that its members are workers of Messrs Engro Fertilizer Limited and not of Mian Zubair & Co. or of the applicant who according to them were introduced as contractors by the employer i.e. Messrs Engro Fertilizer Limited as a device to deprive the workers of their legitimate rights admissible to them under various labour laws. In such circumstances, there was no wisdom or justification for the workers to get their union registered and obtain CBA certificate for the establishment of the contractors. Instead of supporting their own cause, they supported the cause of their employer, obviously due to lack of awareness and understanding. A union of workers cannot be registered and CBA certificate cannot be issued for an establishment, unless the members of the union are workers of the establishment. Since the respondent No.2 claims that its members are not workers of the applicant, it cannot seek restoration of the CBA certificate for his establishment. Thus, the application of the respondent No.2 seeking restoration of CBA certificate for the establishment of the applicant is misconceived and not maintainable. Besides, Section 43 SIRA, under which the application was filed by the respondent No.2, provides that a CBA may apply to the Labour Court for the redressal of any grievance or enforcement of any right guaranteed or secured to it by or under any law or any award or settlement. After cancellation of its CBA certificate, the respondent No.2 ceased to be the CBA and, therefore, could not file the application as CBA. There is no provision in SIRA conferring jurisdiction upon a Labour Court to decide matters pertaining to grant, cancellation or restoration of CBA certificate. Such matters are dealt with by the Hon'ble High Court in exercise of its constitutional jurisdiction.

12. In view of the above facts, circumstances and reasons, it is clear that application of the respondent No.2, before the Labour Court is not maintainable. No useful purpose will be served to join the applicant as party in the non-maintainable proceedings. Accordingly, the grievance Application, No.4 of 2015, filed by the respondent No.2, in the Sindh Labour Court No.7 Sukkur, is dismissed and the revision is disposed of accordingly. JK/35/SLT Order accordingly.