1988 PLP 297 (PLC)

This is a petition filed under section 6 of the Pakistan Essential Services (Maintenance) Act, 1952. The petition originally filed was subsequently substituted by an amended petition. The case of the petitioner union namely; the BO /PP Employees Union, Karachi, as set forth in the amended petition is that there are three unions of workers duly registered namely; (1) the petitioner union, (2) Pakistan Petroleum Employees Union, West Wharf Karachi and (3) Pakistan Petroleum Workers Union, Sui Gas Field, Sui, Baluchistan and that the petitioner union is the "only Trade Union of Workers of the PPL registered with the National Industrial Relations Commission". Their grievance is that firstly the management of the Establishment have refused to make check off deductions from members of the union who are from outside Karachi and secondly, they "have persistently refused to let the petitioner union, which is performing the functions of C.B.A. to nominate representatives of workmen on the Board of Trustees of Provident Fund and the other Welfare Body i.e. the Pension Fund ...." The petitioner has, therefore, sought that this Specified Authority make regulations under section 6 of the Pakistan Essential Services (Maintenance) Act, 1952 directing the Respondents Management: (i) to accept deduction applications for check off by the members of the petitioner union in accordance with law, and (ii) to take the representatives of the petitioner union on the Board of Trustees of the workers, Provident Fund Trust and Pension Fund Trust. Some other points also raised in the petition were not pressed. The petition was resisted by the Respondent/ Management who in their comments raised broadly the following preliminary objections‑.‑ (1) the petition, as filed by the union for enforcement of its own rights under the I.R.O. , 1969 is not competent under section 6 of the Pakistan Essential Services (Maintenance) Act, 1952 and (2) the points raised for regulating by this Authority are already covered by law i.e. section 23 and 22(12)(d) respectively of the I.R.0., 1969 and as such their further regulation by this Authority under section 6 is not warranted. The rule of check‑off is contained in section 23 which makes, it obligatory on the part of the employer, if so requested to by the C.B.A., to deduct from the wages of the workmen such amounts towards their subscription to the funds of the Trade Union as may be specified with the approval of each individual workman named in j the demand statement submitted by C. B. A. The right to be represented to Welfare Institutions has also been conferred on the C.B.A. by section 22(12)(d) whereby the C.B.A. has been made entitled to' "nominate representatives 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." It is, therefore, clear that the directions sought to be issued are in fact for enforcement of a right conferred on the C. B. A. In that case the remedy proper for enforcement of, such rights is under section 34 of the I.R.O., 1969 which reads:‑

34. Application to Labour Court.‑‑Any collective bargaining agent or any employer may apply to the Labour Court for the enforcement of any right guaranteed or secured to it or him by or under any law or any award or settlement. The power made available under section 6 of the Pakistan l Essential Services (Maintenance) Act, 1952 to the Specified Authority is "to regulate the wages and other conditions of service of persons or any class of persons engaged in any employment or class of employment to which this Act applies". The terms "wages and other conditions of service" are no doubt comprehensive and wide in scope but the need for regulating the same will arise if they are not already regulated by law. It is obvious that where the law itself regulates any matter falling within the meaning of the expression "wages and other conditions of service", no regulation will issue. The grievance of the petitioner, as already seen, is on account of the failure of the employer to give effect to the legal right claimed. The petition, therefore, clearly seeks the enforcement of a right guaranteed or secured to the C. B. A. by or under law, for which a B definite provision exists in section 34 of the I.R.O. The question is not of making any regulation but of enforcing a right for which the machinery has been provided under the I.R.O. 1969. Recourse to section 6 of the Act, 1952 is, therefore, misconceived. It is a well -established rule that where a right is created by a special statute which also provides a special remedy for the enforcement of that right then the remedy could be had only under that statute. See Mian Sultan Ali Nanghiana v. Mian Nur Hussain P L D 1949 Lahore 301 at page 339, and Sayyid Abul A'la Maudoodi and 2 others v. The Government of West Pakistan and others P L D 1964 S C 673 at page

781. The petition filed under the Act of 1952, therefore, fails and is accordingly dismissed. A.A./119/Lb. N.I Petition dismissed.