KARACHI PORT TALLY CONTRACTORS ASSOCIATION, KARACHI Versus KARACHI PORT TALLY STAFF UNION (C.BA.)
DECISION
This is a suo motu revision application under section 38(3‑a) of I.R.O., 1969, filed by the applicants Association against an impugned order, dated 16‑3‑1988, passed by the Sindh Labour Court No. V at Karachi, who had allowed an application under section 34 of the I.R.O., 1969, filed by the respondent‑Union.
2. Brief facts of the case were that the respondent‑Union claimed to be a C.BA. for the Daily Wages Tally Clerks and had filed an application under section 34 of I.R.O., 1969, alongwith an application for prohibitory stay order on the basis of clause (c) of a settlement, dated 11‑3‑1985 and also in pursuance of order/judgment dated 23‑9‑1985, passed by the Sindh Labour Court No.1 at Karachi, so that the applicants Association should book at Karachi Port the Daily Wages Tally Clerks only from the 476 verified list by the Welfare Fund Board and not to book the unverified Daily Wages Tally Clerks.
3. The applicants Association resisted the application on the ground that an application under section 34, I.R.O., 1969 was legally not maintainable as the learned Labour Court had no jurisdiction to entertain the same as the provisions of Pakistan Essential Services (Maintenance) Act, 1952 having been made applicable and declared to "all the classes of employment connected with the loading and unloading of goods at the Karachi Port to be employment to which the said Act applies, remain in force for a further period of six months commencing on 1‑2‑1988." Further, it was also claimed that an application under section 34, I.R.O., 1969, filed by the respondent‑Union was incompetent, invalid as the said Union for the Tally Clerks working/engaged by the Karachi Port Tally Contractors and not for the Karachi Port Tally Contractors Association, as the applicants Association did not employ the Daily Wages Tally Clerks and that in fact, the independent Tally Contractors and/or the companies who employ Tally Clerks, directly and independently and were also responsible for each act and deals the day to day matters with the said Tally Clerks, so, as the respondent‑Union had failed to implead the respective Contractors in their application, therefore, due to misjoinder of the concerned parities, it was not maintainable, as the respondent‑Union was issued a Certificate of C.B.A. in respect of as many as 18 establishments, whereas it had made only the applicants Association as party in the proceedings under section 34, I.R.O., 1969. Further, it was claimed by the applicants Association that the respondent‑Union, while invoking the jurisdiction of the learned Labour Court under section 34, I.R.O., 1969 had placed its reliance on an alleged settlement, dated 11‑3‑1985, alleged to have been arrived at between the parties only for a period of 24 months and this period had already expired as back as on 10‑3‑1987, vide its clause (a) under the caption of "General". It was further claimed by the applicants Association that no right much less any right guaranteed or secured under any law, award or a settlement having accrued to the respondent‑Union, so, an application under section 34, I.R.O., 1969, filed by it was incompetent and misconceived. It was further claimed by the applicants Association before the learned Labour Court that as the respondent‑Union was not a legally, validly constituted Union inasmuch as ma C.B.A., therefore, it had no locus standi to raise, file, present and/or represent an application under section 34, I.R.O., 1969 before the learned Labour Court. Lastly, it was also claimed by the applicants Association, if at all the respondent‑Union had any genuine cause, then, it also could not espouse the cause of the workers through an application under
Section 34, I.R.O., 1969, as it is a settled principle of law that each aggrieved worker had to bring his grievance individually before a Labour Court.
4. The learned Labour Court, after hearing both the parties on the above pleadings, had passed the impugned order, hence, the present suo motu revision application under section 38 (3‑A) of I.R.O., 1969.
5. I have issued directions for the registration of this suo motu revision application and also the issuance of Notices to the parties for hearing.
6. I have heard Mr. Muhammad Humayoon, the learned Advocate for the applicants association and Mr. Khadim Hussain, the learned Advocate for the respondent‑Union and have also carefully perused the record and proceedings of the case as well as the written arguments, filed by both the parties.
7. It was contended by Mr. Muhammad Humayoon, the learned Advocate for the applicants Association that the present application under section 34, I.R.O., 1969, of the respondent‑Union was not only not maintainable, but, it was frivolous and vexacious and that the learned Labour Court had no jurisdiction to decide, determine, proceed and entertain such an application for the main reason that the provisions of Pakistan Essential Services (Maintenance) Act, 1952 had been made applicable and declared that "all the classes of employment connected with the loading or unloading of goods at the Karachi Port to be employment to which the said Act applies, shall remain in force for a further period of six months commencing on the 1st of February, 1983." It was, therefore, argued by Mr. Humayoon that the Daily Wages Staff for which the respondent‑Union represents are the class of employment connected with the loading and unloading of goods at the Karachi Port, to which the provisions of Pakistan Essential Services (Maintenance) Act, 1952 were very well‑applicable, so, the jurisdiction of the Labour Court had been ousted, as had been held by the Supreme Court in a case reported in PLD 1982 SC 125. Besides this authority, Mr. Humayoon has submitted that a similar view had been constantly taken in a number of other decisions of this Tribunal as well as the superior Courts. He, therefore, contended that in view of this admitted legal position, the present application under section 34, I.R.O., 1969, filed by the respondent‑Union is liable to be dismissed. On the other hand, it was argued by Mr. Khadim Hussain, the learned Advocate for the respondent‑Union on this point, that the contention of the applicants Association is misconceived as nowhere in the referred notifications, Tally Clerks, had been included by the Government of Pakistan, but, on the contrary only the employment connected with the loading and unloading of goods has been included and the only agency which carries this work of loading and unloading at Karachi Port is the Karachi Dock Labour Board arid no other Agency holds the licence/permit to carry out the job of loading and unloading of the goods at Karachi Port. I see no force in these arguments of Mr. Khadim Hussain, the learned Advocate for the respondent‑Union. From a bare perusal of the Notification, itself as well as the contentions of the respondent‑Union, it would be clearly evident that the Tally Clerks, in question, are very well involved in loading and unloading work at the Karachi Port, therefore, I would hold that the provisions of Pakistan Essential Services (Maintenance) Act, 1952 are very well‑applicable to their employments also so, the present application under section 34, I.R.O., 1969, on their behalf before the learned Labour Court was not legally maintainable and the learned Labour Court was not competent to entertain such an application, as its jurisdiction has been rightly ousted, in view of this Act.
8. It was next contended by Mr. Muhammad Humayoon, the learned Advocate for the applicant association that the learned Labour Court has further erred while holding that the application under section 34, I.R.O. 1969 filed by the respondent‑Union was not in respect of termination of employment. He has submitted that it would be evident that the main application filed by the Union under section 34, I.R.O., 1969, it had mainly contended that the applicants be directed to book Daily Wages Tally Clerks only from the 476 verified list by the Welfare Fund Board, which clearly indicates that it was filed for seeking orders from the Labour Court in respect of booking of the Daily Wages Tally Clerks from the said list of 476 persons as the applicants were not allegedly booking those persons on duty, thus, this is a clear case of employment/unemployment of workers which was filed by the Union before the learned Labour Court, and so, it could not espouse the individual grievance. In support of his pleadings, Mr. Muhammad Humayoon, the learned Advocate for the applicants Association has referred me to a case reported in the PLD 1984 Kar. at page 503. In view of this authority, Mr. Humayoon has submitted that if the union had any grievance with regard to employment/unemployment of Daily Wages Tally Clerks, it should have approached the National Industrial Relations Commission, having proper jurisdiction in the matter. I see much force in these arguments of Mr. Humayoon. From the perusal of the record, I find that the respondent‑Union had itself not disputed that the Daily Wages Tally Clerks were not connected with the loading and unloading of goods at the Karachi Port, nor the learned Labour Court had given any findings on it in the impugned order, dated 16‑3‑1988. In view of this admitted position, I would hold that the impugned order is illegal and without jurisdiction. On the other hand, Mr. Khadim Hussain, the learned Advocate for the respondent‑Union had miserably failed to submit anything on this legal proposition.
9. Next, it was submitted by Mr. Muhammad Humayoon, the learned Advocate for the applicants association that the respondent‑Union in its application under section 34, I.R.O., 1969, had placed reliance for the enforcement of a right in an alleged settlement, dated 11‑3‑1985, which had already come to an end as back as on 10‑3‑1987, vide its admitted clause "A" under the caption of "General", therefore, this settlement was invalid, inconsequential, incompetent and void, particularly, in view of the provisions of section 49(2) of I.R.O., 1969, therefore, an application under section 34, I.R.O., 1969 on the basis of alleged guaranteed right under the said settlement only in March, 1988 was illegal, void and not maintainable under law. Mr. Humayoon, has further pointed out to me to the fact that this fact has already been accepted by the learned Labour Court himself in the impugned order, thus, in view of this position also, the present application under section 34, I.R.O., 1969, suffered from lacuna and liable to be dismissed. On the other hand, Mr. Khadim Hussain, the learned Advocate for the respondent‑Union has submitted that during the pendency of the industrial dispute nobody can change the service/conditions to the disadvantage of the employed persons and that provision of section 47 of the I.R.O., 1969 is mandatory to this effect, and secondly, it has placed reliance on a case reported in 1972 PLC at page 190. I see no force in this argument of Mr. Khadim Hussain, the learned Advocate and would hold that the authority relied upon by him is quite distinguishable and not applicable to the present case. In view of this position, I see much force in the arguments of Mr. Muhammad Humayoon, the learned Advocate for the applicants Association and thus would hold that after expiry of the settlement in question, the respondent‑Union could not legally claim its guaranteed rights and if at all it was interested to provide some relief to the workers, then, it had to negotiate afresh with the employer and in my view such a settlement could not automatically be revived.
10. Mr. Muhammad Humayoon, the learned Advocate for the applicants association has also pleaded that the respondent‑Union being not a legally, validly registered trade union, inasmuch as a C.BA., therefore, it had no locus standi to raise, file, present and represent the present application and in view of this position its registration is also liable to be cancelled. He has further stressed that there is nothing on record to establish as to how the respondent Union is a body which has been authorised, to take such matters before the learned Labour Court, therefore, in view of this admitted position, its registration is liable to be cancelled by the Registrar of Trade Unions, hence, this Tribunal is empowered to issue such directions. It was also contended that the Certificate of C.B.A. of the respondent‑Union produced before the learned Labour Court as Annexure "A" reveals C.B.A. of 18 establishments of different employers having different entity, therefore, such a declaration of C.B.A. Union is not permissible under the provisions of I.R.O., 1969. He further contended that it can either be a C.B.A. of one establishment or group of establishments belonging to one common owner or collective bargaining unit of the establishments. But, in the instant matter, the respondent union is not certified as such, therefore, it is illegally constituted body and also registered in contravention of the provisions of I.R.O., 1969, hence, is liable to be cancelled. I see much force in this contention of Mr. Humayoon. From perusal of the record, it is crystal clear that the respondent‑Union is not a legally constituted body as it has been registered in contravention of the provisions of the I.R.O., 1969. In view of this admitted position, I would hold that the respondent‑Union is neither a legally constituted union nor it was properly registered in accordance with the provisions of the Industrial Relations Ordinance, 1969, hence it is liable to be cancelled by the Registrar of Trade Unions. Accordingly, the concerned Registrar of Trade Unions may proceed in view of my above findings as regards the status of the respondent‑Union. On the other hand, Mr. Khadim Hussain, the learned Advocate for the respondent‑Union was unable to place anything cogent and convincing before me in rebuttal of the contentions of the applicants Association.
For the reasons discussed by me above, I would set aside the impugned order and would allow the present suo motu revision application under section 38 (3‑A) of the I.R.O., 1969, filed by the applicants Association.
A.E./1227/Lb.S Revision allowed.