1981 PLP 525 (PLC)

FAKHRUDDIN G. EBRAHIM, J.‑This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan is filed under the follow ing circumstances :‑

2. Adam Limited Workers' Union, respondent No. 4 filed an appli cation under section 32 (I‑A) of the Industrial Relations Ordinance, 1969 in the Vth Sind Labour Court at Karachi seeking adjudication of the dispute raised under section 26 (1) of the

1. R. O. against Adam Tea Limited followed by a notice of strike under section 26 (3) of the

1. R. O.

3. The petitioner amongst other objections raised the objection that the respondent No. 4 was not competent to spouse the cause of salesmen, vanmen and Controllers and that the application was not maintainable. The learned Labour Court, however, dismissed the application amongst others on the ground that the respondent No. 4 was not properly constitut ed and, at any rate, was not competent to raise the demands on behalf of the Controller.

4. This order was taken in appeal to the Sind Labour Appellate Tribunal, Karachi and was set aside and the case was remanded for decision of the application on merits. Before the learned Appellate Court one of the grounds taken was that the respondent No. 4 was not entitled to maintain the application for the reason that it was not collective bargaining agent, for it had not the requisite number of the workmen em ployed in the establishment and that it was not certified by the Registrar, Trade Unions as the Collective Bargaining Agent On the first point the learned Labour Appellate Court observed its follows :‑ "It has been clearly stated by Aleem that the number of the members of the Union is far in excess of the required one‑third, although at the first time when the Union was formed there were only eleven members. In all there are fifty workmen." On the question of certificate the learned Labour Appellate Tribunal1 observed that no certificate was required as the amendment in the Ordi nance was made in October, 1974 whereas the Industrial dispute was raised in July, 1974.

5. We have beard Mr. Haider Ali Pirzada, learned counsel for the petitioner and Mr. Muhammad Shafiq Qureshi, learned counsel for respondent No.

4. Learned counsel agree that there was no sufficient material on the record of the Labour Court or Labour Appellate Court to give a finding that on the relevant date the Union was qualified to be collective bargaining agent having one‑third of the total number of work men employed in the establishment as its members.

6. As regards the question of certificate Mr. Muhammad Shah Qureshi states that in view of the provisions of section 52 as amended by Ordinance 19 of October, 1974, the respondent No. 4 was entitled to ins titute the proceedings as it had applied for a certificate before institution of the proceedings, On the last point it is agreed that there is no evidence, On the first point it is not clear whether the Labour Appellate Tribunal bad taken into consideration the relevant date or not.

7. Mr. Haider Ali Pirzada has brought to our notice a decision of the same Labour Appellate Tribunal reported in Karachi Hosiery Mills Workers' Union v. M/s. Chotani Garments Industry (1978 P L C 496) wherein the same learned Judge has taken a different view. in this case he has held that on the date when the application was filed in the Labour Court, the Union should be certified, we may reproduce hereinbelow the relevant obser vation :‑ "It was urged before me that the Industrial dispute was raised prior to the amendment of section 22 (1) of I. R. O. which did not require any certificate from the Registrar and, therefore, the approach of the Labour Court after the amendment did not invalidate, the application which was made under section 32 (1‑A). I. R. O. specially when an application to the Registrar for the neces sary certificate was made and, therefore. the case was covered by section 52 of I. R. O, This plea was also taken before the learned Presiding Officer and it was found that no such application for a certificate was made to the Registrar after the amendment of section

22. I have gone through the evidence and I fully endorsed the view expressed by the learned Presiding Officer. Of course, at the time when the Industrial dispute was raised, it was not neces sary to obtain a certificate from the Registrar but after the amend ment certificate was necessary and in order to cover the interim period from the date of application till the certificate was granted, the infirmity was removed by section 52 and the previous Union could continue to proceed with the dispute. But in the present case, as already stated, no application was made and it was falsely claimed that the application was made. Consequently, section 52 is not attracted and, therefore, the Union was incom petent to approach the Labour Court under section 32 (1‑A), I. R. O. This view was also taken by me in another case, viz. Awalin Silk Mills Workers' Union v. Messrs Awalin Silk Mills Karachi in Appeal No. KAR‑91 of 1975, decided on 9th January, 1976 and relied upon by the learned Presiding Officer. In that case I have given detailed reasons and need not to repeat here," In our opinion the latter view taken by the learned Judge appears to be correct and we are inclined to allow this petition on this point alone but in view of the statement of Mr. Shafiq Qureshi that an application for certificate was filed before filing the application, therefore, in view of the provisions of section 52 of the I. R. O., the respondent No. 4 was entitled) to institute proceedings pending grant of the certificate. Under the circumstances. we, by consent, maintain the order of remand. but would give following further directions to the 1Ind Sind Labour Court, Karachi.

1. That before deciding the case on merits the Labour Court shall decide the following two questions : (i) Whether at the relevant time respondent No. 4 had one‑third of the total workmen employed in the establishment as its members. (ii) Whether an application was already filed by respondent No. 4 before the Registrar for a certificate of being a collective bargain ing agent, before it filed the application under section 32 (1‑A) of I. R. O.

2. If the finding of any of the above two questions or any of them is against respondent No. 4, the application shall not be decided on merits and the same shall be dismissed, otherwise the application will be decided on merits. Petition is allowed to the above extent with no order as to costs.