LEVER BROTHERS PA ISTAN LIMITED, KARACHI Versus , KISHWAR SULTANA KHAN

DECISION

The circumstances culminating in this revision application briefly stated are as follows:‑

2. The respondent was appointed as a typist in the appellant's company sometime in 1982 and there was an agreement of employment executed between the parties. Clause 16 of the Agreement reads as under:‑‑

If any dispute, difference or question shall arise between the company, its successors or assignees and the employee etc. etc. or any of them, touching the construction, meaning or effect of this Agreement or any clause or thing herein contained, or the rights or liabilities of the said parties respectively or their ‑respective‑executors‑etc‑‑--under this Agreement---------------------------------------------------------- or otherwise howsoever in relation hereto or to anything arising in connection herewith, then every such dispute, difference or question shall be referred to the Arbitration of two indifferent persons one appointed by each party to the reference or an umpire to be appointed by the Arbitrators in writing.

3.The services of the respondent came to be terminated on 3‑2‑1991 and she was asked to collect her dues as per Agreement. The respondent after settling the preliminaries under the IRO' moved an application under section 25‑A before the Labour Court on or about 6‑3‑1991.

4. On 16‑3‑1991 an application was presented by the appellant challenging its maintainability on the ground that the respondent was not a workman within meaning of the definition as to be found in Standing Orders Ordinance, 1968. This application was resisted and came to be dismissed on 28‑3‑1991. In this very context it may as well be mentioned that a Revision Application had been filed before this Tribunal which ultimately came to be dismissed in due course of time.

5. To pick up the thread, on 15‑4‑1991 an application was moved by the appellant‑company for the extension of time for the purpose of filing the Written Reply and time was so extended. It was thereafter that for the first time an application was moved on behalf of the appellant requesting the Court for the stay of the proceedings in view of the clause referred to earlier in the Arbitration Agreement. The learned Labour Court for the reasons given by it dismissed the application and the matter has come before this Tribunal in Revision.

6. It will be in the fitness of things to reproduce section 34 of the Arbitration Act, which reads as under:‑‑

"34. Power to stay legal proceeding where there is an arbitration agreement . Where any party to an arbitration agreement or any person claiming under him commences any legal proceedings against any other party to the agreement or any person claiming under him in respect of any matter agreed to be referred, any party to such legal proceedings may, at any time before filing a written statement or taking any other steps in the proceedings, apply to the judicial authority before which the proceedings are pending to stay the proceedings; and if satisfied that there is no sufficient reason why the matter should not be referred in accordance with the arbitration agreement and that the applicant was, at the time when the proceedings were commenced and still remains, ready and willing to do all things necessary to the proper conduct of the arbitration, such authority may make an order staying the proceedings."

7. Mr. Muhammad Aslam Butt appearing on behalf of the appellant company has referred me to certain authorities namely:

(1.) PLD 1981 SC 553 Pakistan International Airlines Corporation v. Messrs Pak Saaf Dry Cleaners;

(2) 1988 CLC 2291 Pakistan through Secretary, Ministry of Defence, Islamabad v. Ali Sons Corporation;

(3) 1988 MLD 1150, Pakistan Refinery Ltd. v. Mst. Shahida Sultan.

8. The very first authority cited by the learned counsel does not advance his case, because it was held therein that the party "take the objection and apply for stay of proceedings before taking any step, for example, the filing of the written statement, that is, before he places his cards on the table. The provisions of the section, further imply that the Court should, first of all, examine whether the arbitration clause applies to the dispute, and if it does, whether the nature of the dispute is such that the ends of justice will be better met by the decision of the Court" etc.

9. In the case of Pakistan through Secretary, Ministry of Defence, Islamabad v. Ali Sons Corporation it was held that no reply, strictly speaking had been filed before the application and therefore it could not be said that any step had been taken in the proceedings, within the meaning of section 34 of the Arbitration Act.

10. In the last case the written statement appears to have been filed "without prejudice to the preliminary objection taken therein under section 34 of the Act". All the cases are distinguishable.

11. Mr. Muhammad Tasneem learned counsel for the respondent referred me to two authorities namely Muhammad Idris and others v. Tobarak Hossain PLD 1965 Dacca page 260 wherein it was held that "even an application seeking time to file Written Statement was to be taken as step in the proceedings". In Board of Intermediate and Secondary Education, Sargodha and another v. Messrs Akhtar Brothers 1981 CLC 221 mere oral request for adjournment was found to a "further step in the proceeding".

12. The Revision Application s devoid of all merits and stands dismissed.

H.B.T./2044/Lb.S Revision dismissed.