1972 PLP 416 (PLC)

Applicants Ghulam Nabi and Ahmad Khan were in the employment of the respondents Nawab Industries Sukkur. Applicant Ghulam Nabi was retrenched on 19th August 1970. and applicant Ahmed Khan on 20th August 1970. According to the applicants the termination of their services on the ground of retrenchment was taken up in the strike notice by the Union. Subsequently another Union came into existence and in the referendum held on 6th January 1971, the rival Union came out successful. The Union of the applicant there fore, could not pursue the cases of the applicants and hence they filed these two applications under section 34 of I. R. O., 1969. Both the parties have led evidence. Mr. Mahmood Abdul Ghani for the respondents has raised following objections to the maintainability of the application

(a) The applicants were removed from service in the month of August 1970, and at that time individual worker could not come under section 34 of I. R. O., 1969, hence these applications are not maintainable. (b) The procedure prescribed in section 18 of the West Pakistan Industrial Commercial Employment (Standing Orders) Ordinance, 1968 has not been complied with and hence these applications cannot be maintained. (c) The applications are highly belated. The termination came into effect in the month of August 1970 and the applica tions were filed in January 1971. Mr. Wasiullah Qureshi replies as follows:‑-- (a) The cases were being pursued by the Union and hence the workers had no occasion to pursue their cases individually. It was only when the Union lost the referendum that the workers had to take up the cases themselves. (b) The referendum was held on 5th January 1971 and there. fore these applications which were filed on 1st January 1971 cannot be said to be belated. Section 34 of I. R. O., 1969 provides for the enforcement of a right which accrues to a party under any law settlement or award. If the right is created by law, the conditions under which that right is created have to be fulfilled before their enforcement is sought under section 34 of I. R. O., 1969. Standing Order 18 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 pro vides a period of limitation for challenging the termination of the service. It can, therefore, be said without any difficulty that after the expiry of that period of limitation the right does not remain enforceable. If the right does not remain enforceable its enforcement under section 34 of I. R. O., 1969 cannot be pressed. I am conscious of the fact that in view of the policy of the I. R. O. a construction beneficial to the workmen has to be preferred more than one construction are possible. In that view of matter I am of the opinion that a worker may come to this Court to im pugne his termination within a period of 60 plus 15 days. (In terms of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, 15 days are allowed to move a griev ance petition and a further period of 60 days is allowed to come to the Court in a case where the employer does not give reply to the grievance petition or rejects the grievance petition). In the instant case the workers have come to this Court long after, the expiry of 75 days. The contention of Mr. Wasiullah Qureshi that the workers had no occasion to come to this Court till, such time as their cases were being taken up by the Union, must fall on the ground that these applications were filed before the referendum took place. The applicants came to this Court four days before the referendum. These applications most fail in another view of the matter. In this Cast alternative remedies were available to the worker and they were free to chose any one of them but once they decided to pursue a particular remedy they cannot be allowed to fall back on the other remedy after having failed in the first remedy. These applications are, therefore, dismissed as not maintainable. This order does not mean that the workers are not entitled to the termination benefits.