P L D 1975 Lahore 325 (PLP)

(3) Any party aggrieved by an award given under subsection (1) or a decision o a Labour Court under subsection (4) of section 25-A may prefer an appeal to Labour Appellate Tribunal within 30 days of the delivery thereof and the decision of the Tribunal in such appeal shall be final. The words "or a decision of a Labour Court" under sub section (4) of section 25-A were omitted by Ordinance XLVIII of 1972 and Act XXIX of 1473). (4) All decisions of Labour Court, other than awards (and decision) referred to in subsection (3) of this section, and sentences referred to in subsection (3) of section 36 shall be final and shall not be called in question in any manner by or before any Court or other authority" (The words "and decisions" were omitted by Ordinance XLVII of 1972 and Act XXIX of 1973). Learned counsel argued that the respondent-Union i.e. the Federation =of four local Unions had filed an application in the Labour Court under -section 34 submitting that the settlement dated 26-8-1971 which had been entered into between the Bank and the Karachi Union also constituted a settlement between the Federation and that the same be enforced. The learned Labour Court held that the aforesaid settlement was only between the parties mentioned therein i.e. the Karachi employees and the Bank and vis-a-vis the employees of the other four local branches represented by their federation, as they were not parties to that settlement and nor had they ,signed it, therefore, the same could not be enforced in their favour or enure for their benefit and that they had no locus standi to apply for that purpose. Learned counsel submits that this decision of the Labour Court according to section 37 (4) of the Ordinance, "Shall be final and shall not be called in question in any manner by or before any Court or other authority". The device to by-pass that decision by presenting an application to the Tribunal under section 50 of the Ordinance was unwarranted by law and consequently the impugned order of the Tribunal which proceeded on the baseless assump tion that the respondent-Union was also a party was without lawful authority. The contention raised seems to have force. Section 50 reads as follows :- "Section

50. Interpretation of settlements and awards.-(1) If any diffi culty or doubt arises as to the interpretation of any provisions of an award or settlement, it shall be referred to the Tribunal constituted under this Ordinance. (2) The Tribunal to which a matter is referred under subsection (1) shall after giving the parties an opportunity of being heard, decide the matter and its decision shall be final and binding on the parties." A com parison of section 34 and section 50 will show that the latter section applies where apparently there already exists an `Award' or a `settle ment' and the question involved is only of its interpretation. It does not apply where, for example, there exists no award or no settlement at all between the parties. It is obvious that existence of a settlement is a condition precedent for acting under section

50. If, therefore, in a given case when there is an operative decision of a Labour Court under section 34 holding that there does not exist any settlement ,4 between the parties, a question of its interpretation does not arise. It may be pointed out that it was agreed before me by all the parties, as it was done before the Labour Court and the Tribunal that in settle ment dated 26th August, 1971, the Federation or employees of the four local branches were not parties or nor had they signed it. In that view of the matter it is obvious that there was no settlement of the Bank with them. The word "settlement" implies that there are two parties between whom the settlement is to take place and merely one-sides. or a unilateral direction of a party, may it be employer or an employee,, cannot be called a settlement-though in the instant case there was no such direction either on the part of the bank vis-a-vis the employees of the four branches. To illustrate my point further, supposing in the settlement dated 26-8-1971 there were certain unilateral provisions which adversely affected the terms and conditions of employment of the employees of the four local branches-(other than Karachi)- then could it be called that in spite of the fact that employees of the four branches were neither parties in that settlement and nor had they signed it still vis-a-vis them it was a settlement which was binding on them. The answer obviously is `no'. In the face of the decision of the Labour Court that Federation Union possessed no locus stands vis-a-vis the settlement between the Karachi Union and the Bank, the position did not undergo a change simply by means of filing an application under section 50 of the Ordinance. At this stage is to be noticed that that decision could not be called in question in any manner by or before any Court or other authority. The words "i any manner" and "by or before any Court or authority" in section 37(4) are comprehensive enough to show that a party cannot get out of it effect by any other manner. Consequently I hold that the learned Tribunal acted without lawful authority in not noticing the obvious effect of the decision of the Labour Court which was pointedly present before it and about the contents of which there was no doubt between the parties and which was being expressly pleaded as a bar in the matter of giving any relief to the contesting respondent-Union.

9. The next point argued by the learned counsel for the petitioner was. -that the learned Tribunal has misread the only relevant document in this case, namely, Annexure `X' the settlement dated 26th August, 1971 which according: to the learned counsel does not contain anything to show that it was meant as a settlement between the Bank and the respondent Federation. The contention seems to have merit. The relevant portions of Annexure `X' ready as follows :- "MEMORANDUM OF SETTLEMENT Names of parties.-(1) National 8c Grindlays Bank Limited having its Head Office for banking business in Karachi at I. I. Chundrigar Road, Karachi (hereinafter designated as the Bank which expression wher ever the context so admits shall mean and include their assigns) AND (2) National & Grindlays Bank Empleyees' Union, Karachi registered' under the Trade Unions Act, 1926 with Registration No. 145 having its office in Naz Chambers 5th Floor, Shahrah-e-Liaquat (formerly Frero Road), Karachi (hereinafter designated as "the Union" which expression wherever the context so admits shall include and mean its successors, and assigns). Representing Employer Representing Employees

1. Mr. M. A. Jaffri,

1. Mr. Asif Siddiqi, Personnel and Management President. Development Officer. Representing Employer Representing Employees

2. Mr. M. Afzal Siddiqui,

2. Mr. S. M. Fatimi, Personnel Officer. General Secretary. SHORT RECITAL OF THE CASE And whereas upon the receipt of the aforesaid communication the Bank arranged to hold a dialogue with the Representatives of the Union and accordingly several meetings were held between the Representatives of the Bank and the Representatives of the Union with a view to reach an agreement regarding tire demands raised by the Union and all other issues discussed during the course of these negotiations. And whereas as a result of mutual negotiations, the parties have agreed to enter into this Settlement in full and final resolution of all the demands raised by the Union and in supersession of the terms and con ditions contained in all previous Settlements/Agreements executed with the Union or the National & Grindiays Bank Employees' Federation of West Pakistan or the former Mercantile Bank Employees' Union as the case may be.

33. The conditions of service included in this Settlement shall apply to clerical and subordinate staff employed by the Bank at Karachi and represented by the Union. This Settlement has been executed this 26th day of August, 1971. Signatures of Parties (Sd.) (Sd.) Masood Ahmed Jaffri Asif Siddiqi (Sd.) (Sd.) M. Afzal Siddiqui S. M. Fatimi. It is with reference to the above passages that the Tribunal found that it contained a settlement with the respondent Federation. The misreading is apparent on the face of the record. The passages quoted above clearly show that the Federation Union was not a party to the agreement and the recitals mentioned therein were not meant for it but were confined to the signatories of that agreement. The Federation Union admittedly not being a signatory the learned Tribunal acted without lawful authority in considering that the same was included therein. Similarly there was no question of any estoppel on the part of the Bank and section 115 of the Evidence Act had no relevancy to the context of the whole affairs. Section 2 (xxiv) of the Ordinance defines a settlement as "a settlement arrived at in the course of conciliation proceeding, and includes an agreement between an employer and his workmen arrived at otherwise than in the course of any conciliation proceedings, where such agreement is in writing, has been signed by the parties thereto in such manner as may be prescribed and a copy thereof has been sent to the Pro vincial Government, the conciliator and such other person as may be prescribed". This shows that if a settlement is not signed by all the parties concerned it is not a settlement in the eye of law. See Western India Match Co. v. I. Tribunal A I R 1958 Mad.

398. Similarly it is well settled as laid down in Nathu Khan and others v. Burtonath Singh and others AIR 1922 P C 176 as per headnote (b) that B not having been a party to a contract between A and C has no cause of action against C-(even though the contract contains certain recitals in favour of B). The present discussion will show that the impugned order of the Tribunal is liable to be quashed on these grounds as well.

10. As against all what has been written above, Raja Muhammad Anwar, learned counsel for the Federation of four local branches submits that section 50 of the Ordinance provided an additional remedy and despite the fact that a decision in a case under section 34 has gone against a party he need not file any appeal under section 37 against the same, and if the question involved is one of interpretation of a settlement he can directly apply to the Tribunal under the aforesaid section for its correct interpretation and in that context the finality referred to in section 37(4) will not be attracted. I have already held that section 50 will apply where admittedly there already exists, as a matter of fact, a settlement between the parties, but if the decision of Labour Court in proceedings under section 34 is that no such settlement j between the parties exists that is the end of the matter and so long as that decision covers the field it cannot be by-passed by resorting to section

50. Any other construction of the provisions of section 37(4) will simply nullify their effect and will make them as non-existent or superfluous which obviously cannot be allowed. If this construction is not put on section 37(4) then the finality of the decisions mentioned therein will be destroyed. The contention of the learned counsel is thus without substance and is hereby repelled.

11. The next point argued by the learned counsel for the Federation Union was that the question as to whether the settlement dated 26-8-1971 was to enure for the benefit of the employees of the four local Unions of the Bank was a question of fact depending upon the construction of the aforesaid settlement and this Court in exercise of its jurisdiction under Article 201 of the Interim Constitution under which the petition was filed (which corresponds to Article 199 of the 1973 Constitution) cannot interfere with the same, assuming without conceding even if the said decision be erroneous. Reliance for this proposition was placed on Muhammad Hussain Munir and others v. Sikandar and others P L D 1974 S C 139 wherein it was laid down that "it is wholly wrong to consider that the constitutional provision was designed to empower the High Court to interfere with the decision of a Court or Tribunal of inferior jurisdic tion, merely because in its opinion the decision is wrong. In that case, it would make the High Court's jurisdiction indistinguishable from that exercise able in a full-fledged appeal, which plainly is not the intention of the Con stitution-makers. When there is jurisdiction to decide a particular matter then there is jurisdiction to decide it rightly or wrongly and the fact that the decision is incorrect does not render the decision without jurisdiction". In my opinion the case cited has no application to the facts and circumstance of the present case for various reasons. The Tribunal in the context herein before mentioned could not by-pass the decision of the Labour Court dated 14th December, 1972 wherein it had been held that Settlement dated 26-8-1971 was not between respondent No. 2 and the petitioner herein, and that respondent No. 2 was neither a party to that settlement and nor had he signed it. This finding of fact is even today accepted before me. If that is so the stage for interpreting the settlement of 26th August, 1971, did not arise and the exercise done by the learned Tribunal in this respect was a sheer futility. It is a case of clear excess of jurisdiction on the part of the Tribunal and not merely of a wrong decision. The existence of a settlement between the parties was a fact essential to enable the Tribunal to go into the interpretation on the same. The aforesaid fact missing and the necessary condition precedent to assume jurisdiction thus lacking, the question of attaching any sanctity to the view of the Tribunal does not arise. Again the impugned order of the Tribunal is based upon misreading the settlement dated 26th August, 1971 inasmuch as when on the face of it respondent No. 2 was neither a party nor' signatory to that settlement the learned Tribunal misread that document in! assuming or holding otherwise. In Mehr Dad v. Settlement and Rehabilitation Commissioner, Lahore Division, Lahore and another P L D 1974 S C 193 it has been laid down that where a jurisdiction of Tribunal below depend upon existence of some particular fact the Tribunal cannot by a wrong decision with regard to it give itself jurisdiction which it would not otherwise possess. On page 195 of the report their Lordships observed with regard to the order of the Settlement and Rehabilitation Commissioner involved in that case that his order was based on conjectures and surmises and clearly indicated that he had not applied his mind and had assumed jurisdiction without dealing with the point involved in the matter. The same is the position in the instant case. The learned Tribunal misread the document Annexure `X' and without adverting to the effect of the absence of the signatures of respondent No. 2 thereon and with out caring to see the implication of respondent No. 2 not being a party there to, proceeded to interpret it and that too by reading some such thing into that which never existed there. Similarly there is even omission to read clause F 33 of Annexure `X' wherein (to excuse repetition)-it was clearly written that "the conditions of service included in this settlement shall apply to clerical and subordinate staff employed by the Bank at Karachi and represented by the Union". These facts of commission and omission on the part of learned Tribunal render its order to be without lawful authority.

12. Learned counsel for respondent No. 2 then argued that as the petitioner had not expressly raised the point of lack of jurisdiction before the learned Tribunal, I, in my discretionary writ jurisdiction, should not allow them to raise this point for the first time before me. He in this respect tried to rely on Ghulam Mohi-ud-Din v. Chief Settlement Commissioner (Pakistan), Lahore and others P L D 1964 S C

829. The contention raised has no merit. From what has been written above, it is abundantly clear that it was specifically pleaded by the present petitioner before the learned Tribunal that there was no case to grant relief to respondent No. 2 inasmuch as the settlement on which the said respondent relied was neither signed by them and nor were they parties there to. In that respect they relied upon the decision of the Labour Court and its implications and effect. These were facts sufficient by themselves to oust jurisdiction of the Tribunal but strangely enough even though the learned Tribunal on factual plain gave the verdict in favour of the Bank but still it proceeded to grant relief to them as hereinbefore mentioned. The ultimate order of the learned Tribunal to say with respect was contrary to its own factual finding regarding absence of condition precedent, namely, absence of a valid settlement between the present parties, due to their neither being signatory nor a party to the same.

13. Lastly learned counsel for the respondent-Union submitted that even though the order of the learned Tribunal was in excess of its jurisdiction, since it was in essence a substantially fair and just order inasmuch as it directed that the Bank should pay uniform rates to its employees in all the five branches of Karachi, Lahore, Rawalpindi, Peshawar and Quetta, therefore, I should not upset such a fair and just order. I am afraid this plea has no reference in the context of the present case inasmuch as I think I should not embark upon an enquiry as to the fairness of the demands which the respondent-Union wants to assert in the form of the submission presently under discussion. I was given to understand by the learned counsel for the parties that respondent-Union has even otherwise served an independent formal notice o n the Bank for acceptance of their demands which are more or less on the same lines on which the Bank entered into a settlement with the Karachi employees, if that is so then that matter is to be examined and pro cessed through the provisions laid down in the Industrial Disputes Ordinance or the Industrial Relations Ordinance or other allied relevant law where parties will have ample opportunity to convass their viewpoint. Learned counsel for a Bank submitted that since conditions in Karachi were vitally different from places where other branches of the Bank were located, there fore, certain difference in the relevant rates of payment will necessarily exist between the Karachi employees and the employees of the other branches. The distances in Karachi according to him were more whereas this was not the position in other places. He argued that even the Government in respect of its employees has fixed for instance different rates of T. A./D. A. etc. for different stations. As there exists a specific procedure for raising and contesting such demands or fairness of such demands, I have no intention to attend to this matter at this stage, because, any expression of view one way or the other may prejudice any party herein. Even otherwise if I allow the impugned order to be maintained it will result in perpetuating an obvious illegality and thrusting such an agreement on a party which he never entered into with the respondent-Union. The principle which is being invoked herein by the respondent-Union cannot be invoked in cases of the present type. The con tention raised by the learned counsel for the respondent-Union is hereby repelled.

14. The upshot of the above discussion is that for the various acts of commission and omission on the part of the learned Tribunal its impugned order is declared to be without lawful authority and of no legal effect against the petitioner. The writ petition is accepted and the said order is hereby quashed. Since the respondent-Union involved the Bank into an entirely baseless litigation respondent No. 2 should bear the costs. I order accordingly. S. A. H. Petition accepted