FAKHRUDDIN G. EBRAHIM, J.-The facts giving rise to this Petition are that on 18-6-1974 the respondent employer filed an application before the Labour Court under section 34 of the Industrial Relations Ordinance, 1969 in which it was alleged that the petitioner registered Trade Union, its Collective Bargaining Agent, had given a strike notice under section 26 of the said Ordinance in relation to demands which were covered by an existing binding settlement and the strike notice was therefore, illegal. It was also stated in this application that some of the demands raised could be enforced in law independently of a strike notice which also made the strike notice illegal. The prayer clause in the application reads as follows:---- "It is, therefore, prayed that this Hon'ble Court would be pleased to enforce the secured and guaranteed right of the application by way of some suitable direction/order or decision holding that the impugned notices issued by the respondents' Union in pursuance of section 26 of the Industrial Relations Ordinance, 1969 are illegal/uncalled for and unwarranted and also that the same has led to a violation and breach of a binding settlement between the parties. It is also prayed that this Honourable Court would be further pleased to hold that the industrial dispute so raised by the respondent Union is patently in excess of jurisdiction and in sheer violation of their secured right."
2. The aforesaid application was accompanied by an application under section 45 of the Industrial Relations Ordinance, 1969 for prohibiting the strike but this application was not granted by the then Labour Court.
3. The application under section 34 of the Industrial Relation Ordinance came to be heard by another Labour Court who has by the impugned order dated 16-10-1974 allowed the same. The Labour Court came to the conclusion that while some of the demands were covered by the binding settlement between the parties, the others could be enforced as a right guaranteed under section 25-A of the Ordinance and accordingly it was not open to the petitioner Union to raise these demands and make it a subject--matter of a strike notice. There are also observations in this order not supported by Mr. Fazle Ghani for the respondent that the strike notice was illegal as the industrial dispute was not raised in the prescribed manner. The strike notice, raised in all four demands. The first related to the re-instatement of three workmen who were allegedly dismissed illegally. The second demand related to night shift and the complaint was that instead of eight hours, nine hours work was taken during the night shift. The third demand related to leave and the grievance was that the leave was not given at the time of need and the casual leave was being refused with a view to cause harassment to the workers. Lastly, there was demand under the heading "strength of workers" which may be reproduced, for according to Mr. Fazle Ghani, the learned counsel for the respondent employer it is a financial demand and under the binding settlement the Union had agreed not to raise any financial demand during the period the settlement was in force:----
4. It may at once be stated that none of the demands were specifically covered by the settlement in force. In fact the demand for the re-instatement of the dismissed workmen could not and was not covered by the settlement for it was itself a later event. The demand relating to night shift, namely that the work during this shift is being taken for 9 hours instead of 8 hours is not covered by the settlement. There was no demand relating to leave in the settlement at all and in any event the present demand was merely limited to the grievance of the workmen that they were not given leave at the time of need. As regards the strength of the workers the argument was that it must necessarily increase financial liability of the employer and since the Union had agreed not to raise any financial demand it was clearly covered by the settlement. On the plain reading of the demand reproduced hereinabove, it is our humble view that there is no demand for increasing the labour. Only a statement is made as to the number of employees employed from time to time and the number of employees in service on the date of this demand. The grievance is limited to Badli workers not being appointed in place of workers on leave and the existing workers being required to give full out-put. Factually, therefore, the Labour Court was quite clearly in wrong in coming to the conclusion that the demands relating to night shift leave or strength of workers were covered by the settlement in force between the parties.
5. In so far as Demand No. 1 is concerned the argument of Mr. Fazal Ghani the learned counsel for the respondent employer was that these workers bad the remedy to have themselves re-instated by an application under sec--tion 25-A of the Industrial Relations Ordinance. The argument also was that a Collective Bargaining Agent was entitled to raise a demand for re-instatement of workers unless and until it is shown that there was some nexus between the Union and the demand for re-instatement of the concerned workers which according to the learned counsel may exist if it was alleged that the workers were victimised. First of all it is doubtful if the learned counsel is right in drawing this distinction and in so far as this Court is concerned the view that has prevailed is that both the remedies are available for reinstatement of dismissed workers, namely, one by raising an industrial dispute by the Union and the other by a workman's application under sec-- tion 25-A of the Industrial Relations Ordinance. We may refer to the following observations of Muhammad Haleem, J. As he then was in the case of International Laboratories Employees' Union v.
Sind Labour Appellate Tribunal (PLD 1976 Kar. 292) as under:- "The learned counsel for the second respondent next urged that the contention of re-instatement was provided separately by subsection (6) of section 25-A and could have been redressed as a grievance under that provision, but their re-instatement as a consequence of dismissal cannot constitute an industrial dispute, and therefore, the Vth Sind Labour Court could not take cognizance of it. This argument also has no substance, for in the definition of the words `Industrial dispute' wrongful dismissal and re-instatement are included in the concept of the expression 'employment' or 'non-employment' vide the case of Western India Automobile Association v. The Industrial Tribunal Bombay and others (AIR 1949 Bom. 111). We have also found nothing in the language of section 25-A and particularly subsection (6) of that section to hold that by implication the question of re-instatement is impliedly taken away from the concept of the expression 'employment, or 'non-employment'. Two remedies are provided by the statute for re--instatement, one is by way of individual grievance under subsection (6) of section 25-A and the other by way of industrial dispute under section 34. The former remedy was not available earlier as Standing Order No. 18 only provided for the reinstatement of the office-- bearers of the Union unless the question was raised as an industrial dispute. It was, therefore that the Legislature in its wisdom added subsection
(6) and gave this remedy to the workers but this did not affect the remedy available earlier in case an industrial dispute was raised. In this view of the matter, we do not find any substance in this contention as well."
However, in the present case the specific allegation made by the Union was that the workers in question were dismissed on account of Union activities and that they had been victimised. There was therefore, obviously the nexus on the presence of which the learned counsel founded his contention.
6. Having come to the conclusion that the demands raised by the Union were not covered by an existing settlement in force it is unnecessary to examine the two decisions on which Mr. Fazle Ghani relied, namely, M. M. Ispahani Ltd. v. Ispahani Company Office Employees' Association, Chittagong and others (1960 PLC 35) and Jhonson & Jhonson Employees' Union v. Jhonson and Jhonson (Pakistan) Ltd. (1975 PLC 153), though we may add that the facts of those two cases were entirely different.
7. Mr. Fazle Ghani did not raise any other argument in support of his contention that the strike notice was illegal.
8. The last argument raised by Mr. Fazle Ghani was that the order made by the learned Labour Court is within jurisdiction and even if it is wrong we in our Constitutional jurisdiction under Article 199 are not entitled to interfere with the same. The learned counsel relied on a decision of the Supreme Court in the case of Muhammad Hussain Munir and others v. Sikandar and others (PLD 1974 SC 139). In this case it was also held that if the Tribunal acts illegally or with material irregularity the High Court was competent to exercise its jurisdiction under Article 199. In the present case there is patent illegality in the order made by the learned Labour Court inasmuch as he allowed the respondent's application under section 34 of the Industrial Relations Ordinance on the ground that the petitioner Union was not entitled to give strike notice and raise certain demands, on the incorrect assumption that the demands raised were covered by a binding settlement between the parties.
9. The result, therefore, is that this petition is allowed with costs.