TUBEWELL EMPLOYEES' UNION SCARP No. IV Versus SECRETARY TO GOVERNMENT OP PUNJAB, IRRIGATION DEPARTMENT, LAHORE

This is an appeal against an award dated 31‑7‑1975 of Punjab Labour Court, No. 2 Lahore.

2. Tubewell Employees' Union Scarp No. IV, through its General Secretary, Muridke, District Sheikhupura raised an industrial dispute in which 52 demands were made. After failure of bilateral negotiations, the Union served a strike notice on the employer and the matter then went up before the conciliator, who failed to bring about a settlement between the parties and issued a failure certificate. Thereafter the Union filed a petition under section 32(1‑A) of Industrial Relations Ordinance, 1969 for adjudication of 52 demands mentioned therein. Irrigation Department, Government of the Punjab through its Secretary, respondent, not only contested the petition on merits but also raised a preliminary objection that since the employees of the Scarp No. IV had been made regular Government servants, they fell under the definition of civil servants and as the Irrigation Department had got its own conditions of service of its employees, they were not entitled to raise any industrial dispute. The learned Labour Court over ruled the preliminary objection vide order dated 31‑7‑1975. On merits the learned Labour Court accepted some of the demands and rejected some of them.

3. Against the demands which were rejected, Tubewell Employees' Union Scarp No. IV, appellant has, preferred this appeal.

4. The respondent also filed cross‑objection, namely:‑

(i) That since the members of tht appellant‑Union were a regular Govern ment servant they could not have raised the industrial dispute in view of section 1(3) of Industrial Relations Ordinance, 1969.

(ii) That the appellant‑Union had not been certified as Collective Bargaining Agent and therefore it could not have raised the industrial dispute in view of section 43 of Industrial Relations Ordinance, 1969.

5. First objection.‑The learned counsel for the appellant contended that as the members of the appellant‑Union were public servants, they were deemed to be employed in the "Administration of the State" and as such they were hit by subsection (3) of section 1 of Industrial Relations Ordinance, 1969. In support of his contention he relied on the judgment of this Tribunal in the case, Livestock 1‑arm Labour Union, Okara v. Registrar Trade Unions, Multan Region, Multan (1975 P L C 554).

6. The learned counsel for the respondent on the other hand contended that all public servants cannot be said to be employed in the "Administration of the State". In support of his contention, he relied on the judgment of this Tribunal in the case." Secretary, Agriculture Department, Government of the Punjab and 3 others v. Field Workers' Union, E. A. D. A., Lyallpur (1976 P L C 13), wherein it was held:‑

"Keeping in view the meanings of words "Administration" and "Administer" as given in Concise Oxford Dictionary, fifth edition, the categories of the workers involved in this case by no stretch of imagina tion can come within the meaning of these words and, therefore, section 1 (3) of Industrial Relations Ordinance, 1969 will not apply to them."

7. In the aforementioned judgment I had relied on the decision of the Sind Labour Appellate Tribunal in the case, General Secretary, Provincial Buildings Employees' Union. Hyderabad v. The Executive Engineer, Provincial Buildings Division and another (1972 P L C 285), wherein it was observed:

"Keeping in view the intention of the Legislature to confer the benefit of Labour Laws on as many persons as would be covered by the definition of WORKMEN the phrase "employed in the Administration of the State must be strictly construed. In this connection it is noteworthy that the Legislature did not say "any person employed in Government service". The intention of those who framed subsection (3) of section I of the Ordinance was not to deprive the benefit of the Ordinance to all persons who are serving the Government. Had it been so they would have said so. The phrase "employed in the administration of the State" therefore must be given a meaning other than "persons employed in Government service"

8. Unfortunately when I had decided the previous case "Livestock Farm Labour Union, Okara v. Registrar, Trade Unions, Multan Region, Multan the aforementioned decision of the Sind Labour Appellate Tribunal was not brought to my notice. I also find that there is a Division‑Bench judgment of the Sind & Baluchistan High Court in the case, Sind Road Transport Corporation and two others v. Staff Union and two others (1975 P L C 361) wherein it was observed:

"The conclusion is that the employees of the Corporation, though the Corporation may be performing functions as an agent of or on behalf of the Provincial Government and its employees are public servants, are not persons "employed in the administration of the State" and hence are not excluded from the application of or the benefits provided under the Ordinance."

In view of the above my previous judgment is no longer good law.

10. In the instant case the workers involved are tube‑well operators, fitters, electricians, foremen, helpers etc. They by no stretch of imagination A could be said to be the persons employed in the "Administration of the State".

11. In view of the above this objection is overruled.

12. Second objection. ‑The learned counsel for the respondent had also filed an application under Order XL, rule 27, read with section 151, C. P. C. for producing additional evidence in support of this objection that since the appellant‑Union was not' the Collective Bargaining Agent, it was not competent to raise the Industrial dispute. The respondent before the learned Labour Coutt did not take up this objection and therefore no evidence on this point was recorded. The appellant opposed this application and the date for arguments of this application was fixed for 20‑2‑1976. Since 20‑2‑1976 was declared a local holiday on account of Urs, Data Ganj Bakhsh, this matter was taken up on 21‑2‑1976, on which date neither the appellant nor his counsel appeared in spite of Order XVII, rule 4, C.P.C. In order to give further opportunity to the appel lant to appear in this case, the case was adjourned to 4‑3‑1976. A notice was also sent to the appellant to appear on that date. On 4‑3‑1976 Mr. Muhammad Ahmad Bani, Advocate, for the respondent appeared but neither the appellant nor his counsel put in appearance. I waited for them to turn up till 12‑15 p.m., but they failed to turn up, and so ex parte proceedings were ordered against the appellant. I vide my separate order dated 4‑3‑1976 allowed the respondent to produce the additional evidence in appeal because this objection went to the root of the matter in view of section 43, Industrial B Relations Ordinance, 1969. On 1‑4‑1976 again the appellant and his counsel failed to turn up. Additional evidence was recorded and ex parte arguments were heard. The order was reserved.

13. Mr. H. R. Haider, Assistant in the office of the Registrar, Trade Unions, Lahore Region, Lahore, stated that the appellant‑Union was certified as Collective Bargaining Agent on 19‑2‑1976 because it was the only Registered Trade Union in the establishment. The said Union had applied for certification as Collective Bargaining Agent on 26‑9‑1975.

14. In (he instant ‑case, demand notice was given on 3‑3‑1975 and strike Union was only certified as Collective Bargaining Agent on 19‑2‑1976, it was not Collective Bargaining Agent when it raised the industrial dispute. At this stage it will be relevant to reproduce section 22(1) of Industrial Relations Ordinance, 1969, which reads as follows:‑

"Where there is only one Registered Trade Union in an establishment or a group of establishments, that `Trade Union shall if it has as its members not less than one‑third of the total number of workmen employed in such establishment or group of establishments upon an application made in this behalf, be certified by the Registrar in the prescribed manner to be Collective Bargaining Agent for such establishment or group."

15. From the above it is clear that it is only the Registrar who can certify a Trade Union as Collective Bargaining Agent. It will also be relevant to reproduce section 52 of Industrial Relations Ordinance, 1969, which reads as follows:‑

"Any act or function which is by this Ordinance required to be performed by or has been conferred upon a Collective Bargaining Agent may, until a Collective Bargaining Agent has been certified under the provisions of this Ordinance be performed by a Registered Trade Union which has been recognised by the employer or employers."

16. From the above it is clear that :f a Union has applied to the Registrar for certification as Collective Bargaining Agent, it can start performing all the functions of Collective Bargaining Agent until the certificate is issued.

17. In the present case the demand notice was given on 3‑3‑1975 and strike notice was given on 15‑3‑1975. The Union applied for certification as Collective Bargaining Agent to the Registrar on 19‑2‑1976. Therefore when the industrial dispute was raised it was neither the Collective Bargaining Agent nor it had applied for certification as Collective Bargaining Agent. Therefore the Union cannot derive any benefit from section 52 of the Ordinance.

18. According to section 43 of Industrial Relations Ordinance, 1969 n industrial dispute shall be deemed to exist unless it has been raised in the o prescribed manner by a Collective Bargaining Agent or an employer. Since the appellant‑Union was not Collective Bargaining Agent at that time when it raised the industrial dispute, the said dispute could not be deemed to exist.

19. In the result I dismiss the appeal, set aside the award of the learned Labour Court and reject the petition under section 32(1‑A) filed by the appellant‑Union.