1976 PLP 59 (PLC)

Ashraf Rizvi for Respondent. Date of hearing: 29th October, 1975. This is an appeal under section 73 (3) of the Industrial Relations Ordinance.

2. Some of the employees of the appellant formed a Union and it was named as Mahmood Industries Mazdoor Union. It was registered with the Registrar of Trade Unions on 28-5-1974. Till then there was no other Union. On 7-6-1974 the Union raised an industrial dispute by serving a demand notice. It was followed by strike notice dated 18-6-1974. During the pendency of the conciliation proceedings some other workers formed a rival Union and named it as Mahmood Industries Employees' Union. It was registered with the Registrar of Trade Unions on 25-6-1974. The conciliation proceedings having failed the Union filed the dispute in the Labour Court on 4-7-1974. Since there were two Unions a necessity arose for determining as to which of two Unions could be treated to be a 'Collective Bargaining Agent' and, therefore, a referendum was held on 16-9-1974. In this refer endum the second Union won and was declared to be the `Collective Bargaining Agent. A certificate to that effect was issued by the Registrar of Trade Unions on 30-9-74. The Industrial dispute which was filed by the former Union was still pending. It seems that the new Union did not take any interest in that dispute.

3. At the outset the learned Representative appearing on behalf of the Union raised a preliminary objection that the appeal was not maintainable as the impugned order did not amount to an award but only a preliminary legal objection was disposed of. Support was sought from an unreported decision of the High Court of Sind & Baluchistan in Writ Petition No. 885 of 1973, Re: R. B. Avari v. Karachi Liquor and Wine Merchants' Union, decided on 31-10-1974.

4. According to section 37 of I.R.O. an appeal can be filed by a party aggrieved by an award. Now the question that arises for consideration is whether the order of the Labour Court amounts to an award. The term Award has been defined by section 2 (ii) of the I.R.O. and it reads a, under: - Award means the determination by a Labour Court, Arbitrator or Appellate Tribunal of any industrial dispute or any matter relating thereto and includes an interim award." Thus it is clear that not only the determination of an industrial dispute is an Award but even any matter relating to the industrial dispute is also covered by the aforesaid term, apart from the extension of the definition to an interim award. There is no dispute that the industrial dispute was not decided. It also cannot be said to be an interim award as none of the demands was determined. This leaves us with the expression, any matter relating thereto . In order to appreciate the term, it is necessary to refer to the definition of the term 'industrial dispute', which reads as under the Industrial Dispute means any dispute or difference between employers and employers or between employers and workmen or between work men and workmen, which is concerned with the employment or non-employment or the terms of employment or the conditions of work of any person. The aforesaid definition covers three classes of dispute connected with (i) employ ment or non-employment, (ii) terms of employment and (iii)conditions of work. Thus the expression "any matter relating thereto" should necessarily be covered by any of these three classes. Quite obviously the decision of the Labour Court does not relate to any of them but it is in 6 respect of the status of the Union as a collective bargaining agent and, therefore, it cannot be said to be covered by any of those classes, with the result that it is not a matter relating to an industrial dispute, and, therefore, not an award. In this view I am fortified by the decision of the Supreme Court in the case of Province of West Pakistan v. Syed Moharram All and others (1970 P L C 408) In that case the period of the award made earlier, was extended. Against this extension an appeal was filed in the High Court and it was held that the appeal was not maintainable as the extension of the term of the award did not amount to resurrection of the industrial dispute. This was confirmed by the Supreme Court. The relevant observa tion reads as under: - It was contended that the question of the extension of the award was a matter relating to an industrial dispute and as the order of the Industrial Court extending the period of the award amounted to an award it was appealable as such. The learned Judges in the High Court did not accept this contention and we agree with their reason that the phrase "any matter relating thereto" in this definition is to be read 'ejusdem generis' with the words 'Industrial dispute' to cover only controversies with regard to the employment or non-employment or the terms of employment or the conditions of work of any person under subsection (5) of section 12 of the Ordinance. This observation of the Supreme Court leaves no room for doubt that the expression any matter relating thereto cannot be extended to any matter other than the aforesaid three classes of dispute. It, therefore, follows that the impugned order does not amount to award and is not appealable.

5. Referring to the case decided by the High Court of Sind & Balu chistan, although this question was not fully dealt with and simply an observation was made that no appeal lay against the order deciding that a group of establishments though not owned by a single employer, could form a Union in order to acquire the status of a bargaining agent if other conditions laid down by section 22 were satisfied but all the same it deserves due consideration. Indeed the facts of two cases are distinct from each other but the principle involved in both the cases is the same.

6. In the circumstances I hold that appeal against the impugned decision is not maintainable. In view of this it is not necessary to go into the other question as to the competency of the Union to persue the dispute pending in the Labour Court. It may, however, be stated that it will be open to the appellant to agitate the plea in appeal if an adverse award is passed.

7. In the result the appeal is dismissed.