1984 PLP 1566 (PLC)

5. The learned counsel for the respondent submitted comments on 30th May, 1984 and a copy of the same was handed over to the learned counsel for the petitioner. The case was fixed for arguments on the maintainability of the petition on 7th of June, 1984. An application was moved by Ch. Ghulam Qadar, Advocate on 7th of June, 1984 for adjournment of this case on the grounds that a meeting is going to be held on 10th of June, 1984. He also prayed that he should be heard alongwith his counsel Mr. Fazal‑e‑Elahi Siddiqui. The learned counsel for the respondent however opposed the request for adjournment and I heard the parties accordingly. Ch. Ghulam Qadar the learned counsel for the petitioner was however advised to submit his written arguments on 16th June, 1984 with a copy of the same to the learned counsel for the respondent who was to inform me about his comments on these arguments if any within 3 days of the receipt of the arguments. The written arguments from Ch. Ghulam Qadar were received on 18th June, 1984 and the comments thereon were received from the learned counsel for the respondent 2 days thereafter.

6. I have carefully gone through the written arguments submitted by the learned counsel for the petitioner. It has been submitted that the M. C. P. L. Officers Association was registered by the Commission in the year 1975 and this Association enjoys full support and written membership of overwhelming majority of officers and was recognised as C. B. A. by the management of M. C. P. L. The Association has been attending meetings and the respondent used to deal with the members of the Association. The learned counsel enclosed copies of the demand notices and minutes of the meetings held between the Association and the M. C. P. L. It has been mentioned that in 1974 M. C. P. L. was formed and all the employees of former M. P. O. Wing WAPDA were transferred and none of the posts was left with the WAPDA after 1st September, 1974. The Association has been demanding that no employees should be repatriated and that no repatriation should be carried out without consultation with the C. B. A. A settlement was arrived at on 19th April, 1981 but respondent passed an order on 22nd February, 1984 regarding the repatriation of all the employees employed in the M. P. O. working in the M. C. P. L. but this was stayed by the Commission, and the main petition was still pending. The Association submitted a separate application against the repatriation and a stay order was granted by the Commission on 15th May, 1984.

7. It has been submitted by the learned counsel that the Association is a recognised Association by the respondent and was legally competent to file an application under section 34 being C. B. A. He cited case law reported to 1‑980 P L C 316 and 1976 L L C 461 w herein it has been held that the meaning of word "it" is C. B. A. as compared to employer within the meaning of section 34 of the I. R. C. and as such it could move the application under section

34. It was submitted that the Legislature has permitted the formation and registration of employer's trade Unions and to act as C. B. A. on behalf of its members and to serve a demand notice and thereafter to get the same adjudicated and the demand notice served by the petitioner C. B. A. is to be legal one in view of the provisions contained in section 26 (1) of the I. R. O. It was submitted that the respondent has clearly violated the agreement and settlement regarding the point of repatria tion which the respondent was bound to follow in view of the principle Of law laid down by. the various Courts that the instructions or the executive orders are bound to be complied with by the departments or the employers.

8. I shall deal with the question of maintainability of the petition. It has been submitted by the petitioner that the union is a union of employer registered with the Commission. Under section 34 any C. B. A. or 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 r settlement. In this section there are only two parties, one of the C. B. A. and the other employer. There is no such thing as employer or top employer as submitted by the learned counsel for the petitioner. The word therefore, correctly refers to the C. B. A. and not the employer as the word `him' refers to an employer. An employer cannot apply under this action for enforcement of any right guaranteed or secured to it or him by or under any law, award or settlement.

9. As has been pointed out above only the C. B. A. is empowered to apply to the Labour Court under section

34. The C. B. A. has been defined a section 2 (v) as "the C. B. A. in relation to an establishment or industry, paeans 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 latter of collective bargaining."

10. It, therefore, implies that a trade Union of employer cannot be a C. B. A. In fact section 22 which deals with determination of C. B. A. has all along referred to trade Unions of workers and not employer. It is, therefore, clear that a trade union can be formed by the workmen or employers but whereas the trade Union of workmen can be determined as C. B. A. the privilege is not available to the trade Union of employers.

11. The learned counsel for the petitioner has then referred to the raising of industrial dispute by the Association and has submitted that this association has been raising industrial disputes and holding negotiations with the employer. This is apparently against the provisions contained in section 43 of the I. R. O. which lays down that no industrial dispute shall be deemed to exist unless it has been raised in the prescribed manner by a C. B. A. or an employer. Since the Association cannot be deemed to be at Collective Bargaining Agent as defined in section 2 (v) of the I. R. O. it is not competent to file an application under section 34.

12. The learned counsel has referred to a Division Bench ruling reported in P L D 1971 Lab. 222 in which it was held that a trade Union of employers can have the dispute resolved by means of an application to the Court under section

34. The Industrial Relations Ordinance was promulgated on 25th of October, 1969 and section 34 in that Ordinance read as under:

‑ "Section

34. Application to Labour Court.‑‑Any party to an industrial dispute relating to a matter arising out of any right guaranteed or secured to an employer or workman by or workman by or under any law for the time being in force or an award or settlement may apply to the Labour Court for adjudication of the dispute."

13. This section was amended by Industrial Relations (Amendment) Ordinance, 1970 promulgated on 14th of October, 1970. The amended section 34 read as under : ‑ "Section

34. Application to Labour Court. Any C. B. A. or any employer or workman 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."

14. This section was further amended by Industrial Relations (Amend ment) Ordinance, 1972 promulgated on 6th of November, 1972 and ‑ the words "or workman" were omitted.

15. The Writ Petition No. 453 of 1970 was decided on 30th of June, 1970 and was reported in P L D 1971 Lah. 222, section 34 at that time read as under :‑ "Section

34. Application to Labour Court. Any party to an industrial dispute relating to a matter arising out of any right guaranteed or secured to an employer or workman by or under any law for the time being in force or an award or settlement may apply to the Labour Court for adjudication of the dispute."

16. This section has been radically changed and only the C. B. A. or an employer have been authorised to apply to the Labour Court under this E section. Much water has flown since then and the ruling given in P L D 1971 Lah. 222 is I am afraid no longer applicable in the present case.

17. In view of the above discussions, I hold that the Association is not competent to file an application under section

34. I, therefore, dismiss the petition and recall the stay order, dated 15th of May, 1984. A. B. Petition dismissed.