1975 PLP 438 (SCMR)

Nemo for Respondents. Date of hearing : 14th March 19 7

5. MUHAMMAD GUL, J.‑This petition is from the judgment of the High Court of Sind & Baluchistan, dated 9‑9‑1974, whereby the order of the Sind Labour Appellate Tribunal dated 18‑4‑1973 in an appeal filed by the petitioner herein, was set aside. The petitioner‑Company is engaged in the manufacture of steel ingots and other steel products at Karachi. Respondent No. 1 is a registered trade union having as its members, the employees of the petitioner Company. It appears that an industrial dispute arose between the petitioner‑Company and respondent No. 1 early in the year 1970, as a result of which there was a strike. The Provincial Government however, vide order dotted 22‑6‑1970 declared the strike illegal. The strike was called off and from among the striking workers, 55 employees including some of the office‑bearers of respondent No. 1 were locked‑out and later dismissed front service by the petitioner‑Company. Thereupon, respondent No. 1 moved an application under section 34 of the Industrial Relations Ordinance, 1969, The applica tion was dismissed on 3‑10‑1970 for non‑prosecution. This was followed by a fresh application almost two years later, on 13‑9‑197? alongwith air application for condonation of delay. The Labour Court condoned the delay and gave its decision on 3‑i‑1973 described as award ordering the re‑instatement with back‑benefits of 55 employees, who, therefore had been dismissed by the petitioner‑Company. Against the above order, the petitioner‑Company filed an appeal before the Sind Labour Appellate Tribunal. The Appellate Tribunal after hearing the parties and certain gentlemen as amacus curiae, accepted the appeal of the petitioner‑Company on the ground that on 13th September 1972 when respon dent No. 1 moved the Labour Court for. the settlement of the industrial dispute, there wire in existence two registered labour unions, namely, respondent No. 1 and the National Steel Workers Union, but that neither of these two unions had been declared Collective Bargaining Agent (C. B. A) under section 34 of the Industrial Relations Ordinance. This was an essential condition to enable a trade union to move an Industrial Court for the settlement of an industrial dispute. The secret ballot under that section, however, was held on 14‑9‑1972 and as a result of that, the other trade union namely, the National Steel Workers' Union was declared C. B. A, Accordingly the Appellate Tribunal held that the complaint lodged by respondent No. I on 13‑9‑1972 could not continue after the National Steel Workers Corpora tion had been declared C. B. A. because respondent No, I lacked the representative character necessary to qualify it to continue the prosecution of the complaint. The order of the Appellate Tribunal is dated 18.4‑1973. Aggrieved by the above order, respondent No. 1 moved Writ Petition No. 849 of 1973 in the High Court, which was allowed by the judgment dated 9‑9‑1974 and the order of the Appellate Tribunal was set aside, mainly on the ground that there was no material on record to show that respondent No. 1 was not C. B. A. at the relevant date, and further that it was conceded by the petitioner's counsel that no objection was taken by the petitioner either before the Labour Court or the Appellate Tribunal as to the representative character of respondent No. 1 under section 34 of the Ordinance and that the Appellate Tribunal could not have raised the objection suo moto. That in any event, to allow the order of the Appellate Tribunal to stand would amount to "perpetuating injustice‑, as a result of which about 55 workmen will remain out of employment. Therefore, the High Court in exercise of writ jurisdiction will be acting in aid of justice to grant redress, to respondent No. I, any technical objection notwithstanding, The petitioner‑Company seeks leave against the above judgment of the High Court. In support of this petition, Mr. K. A. Ghani, learned Advocate‑on Record argued that the High Court mainly decided the case on the basis of concession wrongly made by the petitioner's learned counsel in the High Court that no objection was taken before the Labour Court and the Appellate Tribunal, about the competency of complaint relating to the industrial dispute. It was stressed that it was patent on the record that objection about the lack of representative character of respondent No. 1 as C. B. A. was expressly taken on behalf of the petitioner‑Company. This according to the learned counsel was a jurisdictional defect, which went to the root of the matter and the High Court fell into serious error on a matter of law relating to the jurisdiction of the Labour Court to entertain the dispute. In support of this argument, learned counsel relied on this Court's 4 judgment in The Pakistan Steel Re‑rolling Mills Association v. The Province of West Pakistan. (P L D 1966 S C 72) The point urged by learned counsel needs consideration. Accordingly, eve grant leave to consider whether the High Court was right in allowing the writ petition by respondent No. 1 and restoring the order of the Labour Court, which order itself was without jurisdiction? Security Rs.1,

000. Leave granted.