1992PLC143 (PLP)

4. These orders were challenged by the respondents in a Constitution Petition before the High Court. The petition was allowed on the ground that the application under section 34 of the Ordinance on behalf of the appellants was not maintainable.

5. We have heard the learned counsel for the parties.

6. The point for consideration is whether the Collective Bargaining Agent (CBA) is empowered to make an application on behalf of workers for enforcement of rights guaranteed to them under section 47 of the Factories Act.

7. The learned counsel for the appellants submitted that for enforcement of rights guaranteed under any law an application could be made by the Collective Bargaining Agent where there is collective grievance by all the workers. On the other hand, the learned counsel for the respondents contended that CBA was not entitled to make such application as it could apply under section 34 of the Ordinance in respect of only those rights secured to it (CBA) under the Ordinance. In order to appreciate the contentions of the learned counsel, we may refer to the relevant provisions of the Ordinance:-- "Section 2 (v) "Collective Bargaining Agent," in relation to an establishment or industry, means the trade union of workmen which, under section 22, is the agent of the workmen in the establishment or, as the case may be, industry, in the matter of collective bargaining." Section 2 (xiii): "Industrial dispute" means any dispute or difference between employers and employers or between employers and workmen, which is concerned with the employment or non-employment or the terms of employment or the conditions of work of any person; and is not in respect of the enforcement of any right guaranteed or secured to him by or under any law, other than this Ordinance, or any -award or settlement for the time being in force". Section 22(12): The Collective Bargaining Agent in relation to an establishment or group of establishments shall be entitled to-- (a)??????? undertake collective bargaining with the employer or employers on matters connected with employment, non-employment, the terms of employment or the conditions . of work: other than matters which relate to the enforcement of any right guaranteed or secured to it or any workmen by or under any law, other than this Ordinance, or any award or settlement. (b)??????? represent all or any of the workmen in any proceedings; (c)??????? give notice of, and declare, a strike in accordance with the provisions of this Ordinance; and (d)??????? 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 (XII of 1968)."

8. Under section 47 of the Factories Act, a workman is entitled for extra pay for overtime in accordance with the rates prescribed by this Act. The learned counsel for the respondents submitted that the appellants claimed right under law which could not be enforced by CBA as such right was not guaranteed to it. An application for the enforcement of such right could only be made by workers under section 25-A of the Ordinance. The learned counsel for the appellants, however, stated that as no right has been guaranteed to the CBA under this Ordinance, therefore, the objection on behalf of the appellants about the maintainability of the application was devoid of any reason.. We now re-produce section 25-A(1) and section 34 of the Ordinance:-- Section 25-A(1): "A worker may bring his grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement for the time being in force to the notice of his employer in writing, either himself or through his shop steward or collective bargaining agent, within three months of the day on which cause of such grievance arises". He may take the matter to Labour Court under subsection (4). Section 34: "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."

9. Both the provisions are identical in nature and an application can be made for the enforcement of any right guaranteed and secured by or under any law or any award or settlement. The forum is also the same, that is such application has to be moved to the Labour Court. The Collective Bargaining Agent can move an application under section 34 of the Ordinance whereas an individual worker has to make an application under section 25-A. We now examine the contention of the learned counsel for the appellants that CBA has not been guaranteed any right under the Ordinance. There are certain provisions in the Ordinance which have guaranteed certain rights to the CBA. Under section 23 of the Ordinance, on the request of the CBA, the employer shall deduct from the wages of the workmen such amounts towards their subscription to the funds of the trade union. Under section 23-B(2)(a) the workers' representatives in the management of a factory be nominated by CBA. According to section 23-B(9) CBA may take up the matter of bilateral negotiations in case the advice of the workers' representatives is rejected by the management of the factory. Section 23-B (10) contemplates that CBA may apply to the Provincial Government to nominate an Auditor to audit the accounts of the factory. Section 24(2) prescribes, thai CBA shall nominate representatives of the workmen on such works council 8 constituted under section

24. Under section 26, if an industrial dispute has arisen, the CBA may communicate his views to the works council or to the other party. In case of failure of bilateral negotiations in the Works Council, the CBA under section 26(3) may within seven days serve on the other party to the dispute a notice of strike. Section 39 provides that the decision of the Labour Court where CBA is a party shall be binding on ahl the parties to the industrial dispute.

10. The aforesaid provisions will clearly indicate that the CBA has been guaranteed certain rights under the Ordinance and these rights can be enforced by it under section 34 of the Ordinance if they are denied by the opposite party.

11. Another point to be noted is that the word "it" mentioned in section 34 refers to Collective Bargaining Agent and the word "him" refers to the employer. This interpretation has also been made by the High Court. The word "workman" used in section 34 was omitted by Act (XXIX) of 1973. Before this amendment, a workman could also make an application under section

34. As such right had already been guaranteed to an individual workman, the amendment was made to harmonise the two provisions.

12. The learned counsel for the appellants cited Messrs Jang Publication Ltd. v. Presiding Officer, Labour Court 1987 PLC

274. In this case, the precise point was not taken. An objection was raised that an application under sections 34 was incompetent as the respondent No.2 therein was not a collective bargaining agent. In this context, it was observed that respondent No.2 was a registered trade union and, therefore, was competent to make an application under section 34 of the Ordinance for the enforcement of a right guaranteed to them.

13. We may observe that both under sections 25-A and 34 of the Ordinance, an aggrieved party can move an application for the enforcement of D rights already guaranteed. and the Courts have not to adjudicate upon the rights of the parties as observed in Muhammad Aqil v. Sindh Labour Appellate Tribunal PLD 1978 Kar. 649.

14. The learned counsel for the appellants has also referred to A.E.G. ' Pakistan (Pvt.) Ltd. v. Sindh Labour Appellate Tribunal (1990 PLC 806) but this case is also inapt. However, Chamber of Commerce and Industry v. Presiding Officer, Sindh Labour Court PLD 1979 Kar. 189 supports the view of the appellants but it had not considered the import of word "it" mentioned in section 34 of the Ordinance. In Iqbal Ahmad v. Second Sindh Labour Court, Karachi 1980 PLC 316 this word was considered. On the other hand, the learned counsel for the respondents referred to Sindh Alkalis Ltd. v. Workers' Union PLD 1979 Kar. 474; Allied Bank of Pakistan v. Labour Appellate Tribunal, Lahore 1982 PLC 1; Bolan Textile Mills v. Labour Union, Bolan Textile Mills 1986 PLC 751.

15. In lqbal Ahmad's case the word "it" has been interpreted and it was observed that "it" in section 34 denotes collective rights of workmen as enforceable by agency of collective bargaining agent. We consider that the meaning of the word "it" has been stretched too far in this case while making reference to section 22(12). Subsection (12)(b) is not to be read in isolation. It is connected with opening words of subsection (12) itself and it means that CBA can represent m any proceedings in relation to an establishment. Under this subsection CBA is the agent of the workmen in the establishment as defined in section 2(v) of the Ordinance. It does not empower CBA to enforce settled rights of a workman.

16. One of the functions of the CBA is to raise an industrial dispute when there is any difference between employers and employers or between employers and workmen which is connected with the employment of non?-employment or terms of employment or the conditions of work of any person and it involves a lot of, workers. The CBA would sponsor such dispute. It is only a collective dispute that can be considered an industrial dispute and combined interest of all the workers would be the prime factor for raising such dispute. Action or omission on the part of the employer which affects more than one ` worker would constitute industrial dispute. Similarly when the workers do something in derogation of law or abstain from doing such thing which they are legally bound to do it, the employer can raise an industrial dispute. In such a situation, the CBA would undertake collective bargaining in addition to rights already guaranteed. It means to raise new dispute concerning employment, non-employment or conditions of work. The collective bargaining by CBA would not mean that CBA under section 34 would also represent all the workers before the Labour Court in respect of the collective grievance of the workers. The primary functions of CBA is to resolve dispute before the parties go to the Court which is for the healthy promotion of relations between the employer and the workers.

17. In case of an individual grievance of a worker in respect of pre?determined rights an application is to be made under section 25-A of the Ordinance. The procedure laid down in this provision has to be complied with before moving the Labour Court. The CBA has also been authorised to move the Labour Court in case of individual grievance if the worker has brought his F grievance to the notice of his employer through his collective bargaining agent. Where the law has empowered the CBA to move an application to the Labour Court it has specifically stated so in the law itself. A construction of the law has to be made which is reasonable and is in consonance with the spirit of law. A foreign element cannot be brought into simply to make it more convenient to G litigants.

18. The learned counsel for the appellants submitted that "if any law" is given restricted meaning then the words "law", "settlement" or "award" become redundant. He argued that there are many laws which confer rights on workers therefore "any law" is a wide word and is used to cover the rights of workers under any law. He stated that "any law" mentioned in section 34 covers all law. This contention is contrary to the provision of sections 25-A and 34 of the Ordinance. In section 34 the expression used is `right guaranteed to it under any law'. As such, there must be specific laws conferring rights on CBA. On the other hand, the language used in section 25-A is "under any law for the time H being in force". The scope is much wider. It covers all laws which have guaranteed rights to workers. The expression "any law" in two provisions has been used differently.

19. It was next urged that no settlement or award can possibly confer any right on CBA. We have already noted the provisions which have conferred rights on CBA under the Ordinance. A CBA can raise an industrial dispute and this dispute can be resolved through negotiations, conciliation and arbitration. The decision of the Labour Court is also an award as defined in section 2(ii) of the Ordinance. Under section 29 a copy of the notice of an industrial dispute is to be delivered to the conciliator by a party to such dispute. Under section 30, the conciliator shall call a meeting of the parties to the I dispute for the purpose of bringing about a settlement. If the conciliation fails, the matter may be referred to the arbitration with the consent of the parties under section 31 of the Ordinance and the arbitrator shall give his award. According to section 39, a settlement arrived at in the course of conciliation proceedings or otherwise between the employer and the collective bargaining agent or an award of arbitrator or an award or decision of a Labour Court shall be binding on all parties to the industrial dispute. It, therefore, cannot be said that the words "settlement" or "award" are redundant.

20. The learned counsel next submitted that "section 34 envisages collective grievance of CBA and section 25-A for the individual grievance of a worker. Under section 25-A CBA can also make an application on behalf of a group of workers. Section 25-A is a safety valve. There may not be a CBA or CBA may refuse to take cause of action to Court. In such a situation, section 25-A displaces section 34 of the Ordinance", but we have not been able to persuade ourselves to accept this contention. In the absence of CBA such functions can be performed by the registered trade union as stated in section 52 of the Ordinance. Even workers may make joint application under section 25-A(10). Both the provisions are distinct for the purpose of approaching the Labour Court.

21. The learned counsel for the appellants submitted that if a narrow interpretation of section 34 is adopted there will be multiplicity of proceedings. This argument was also considered by the High Court. We are of the same view that in case the workers have any common grievance arising out of a common cause of action they may make a joint application to the Labour Court. In case there is a community of interest between all the workers and they have a joint grievance in respect of their right they can move a joint J application to the Labour Court. Even under section 49 of the Ordinance a workman who is a party to an industrial dispute shall be entitled to be represented under the Ordinance by an officer of the collective bargaining agent. We are, therefore of the view that CBA was not entitled to make an application under section 34 of the Ordinance on behalf of the workers for the enforcement of rights guaranteed to them under section 47 of the Factories Act.

22. It was la⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪ Court in its extraordinary jurisdiction. The High Court has not entered into the realm of facts. It has interpreted the provisi⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪rt was within its jurisdiction k to determine the legal proposition. The order is with jurisdiction. We do not see that any depa⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪has no force. The same is dismissed with no order as to costs. AA./K-179/S?????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed. ⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪⨪