ORDBR This is an appeal by one Ulfat Hussain who is employed as a Conductor in Lahore Omnibus Service.
He was dismissed from service on the ground of misconduct on the 26th of Aprit 1966. He made an application under section 38 of the Industrial Disputes Ordinance, 1968, hereinafter called the Ordinance, for his re-instatement. He alleged in para. 2 of his application that Industrial Disputes Nos. 55/65, 9/67, 28/67, 37/67 and 47/67, were pending between the Road Transport Employees'
Union, Lahore and the respondent, Road Transport Corporation and that he was connected with these disputes. The Corporation, in reply, admitted that these disputes were pending before the Industrial Court but denied that the appellant was in any way connected with these disputes either directly or indirectly.
2. At the time of arguments it was urged on behalf of the Corporation that there had been no violation of the provision of section 37 of the Ordinance inasmuch as the appellant cannot be said to be connected with any of the Industrial Disputes and the application is liable to be dismissed.
The contention found favour of the learned Court and he dismissed the application.
3. Mr. Moinuddin, the learned Representative for the appellant contended in the first place that mere pendency of any Industrial Dispute on behalf of any Union whether the appellant was a member of that Union or not is sufficient to give a right to the appellant to claim redress under section 38 of the Ordinance. In order to appreciate the contention of the learned Advocate for the appellant it would be necessary to reproduce subsection (1) of section 37 of the Ordinance. :- "37(1) No employer shall during the pendency of conciliation proceedings or proceedings before a Court or the Tribunal it respect of an industrial dispute or during the period between conclusion of the conciliation proceedings and the commence--ment of the proceedings before the Court, alter, ' to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of conciliation proceedings, nor shall he-
(a) save with the permission of the Conciliation Officer, during the pendency of conciliation proceedings and the period there after preceding the commencement of the proceedings before the Court, and
(b) save with the permission of the Court, during the pendency of the proceedings before the Court, and of the ' Tribunal during the pendency of the proceedings before it, discharge, dismiss or otherwise punish any such workm6d except for misconduct not connected with such dispute." a. Under section 38 of the Ordinance when any employer contravenes the provisions of section 37 during the pendency of proceedings before a Court, any workman aggrieved by such contravention may make a complaint in writing in the prescribed manner to such Court and on receipt of such complaint, that Court shall adjudicate upon the complaint as if it were an industrial dispute in respect of which application has been made under subsection (8) of section 6. It is true that section 38 of the Ordinance does not lay down that the workman must be concerned with the Industrial Dispute pending before a Court. The Court, however, cannot ignore the provision of section 37. It is only on the contravention of the provision o section 37 that a right accrues to a workman to seek the assistance of the Industrial Court. The intention behind sections 37 and 38 of the Ordinance is that during the pendency of an Industrial Dispute in which a workman has an interest his' rights must be safeguarded. The Industrial legislation con templates collective bargaining. No individual has been given right to approach the Court except on contravention of section 3 of the Ordinance, otherwise it is only the Union or the Fiv Representatives of the workmen who can take up the cause of a individual before the Industrial Court. Section 37 read wit section 38 therefore must be strictly construed. The question is as to whether a mere pendency of any Industrial Dispute before the Industrial Court is sufficient to attract the provisions of section 38 of the Ordinance. I have given my careful, consideration to the contention of Mr. Moinuddin. I have come to the conclusion for the reasons which I will presently mention that pendency of any Industrial Dispute before a Court is not sufficient to attract the provisions of section 38. The important word that supports my conclusion is the word "concerned" occurring in subsection (1) of section 37 of the Ordinance. The employer cannot alter to the prejudice of the workman his terms of condition who is concerned with the industrial Dispute pending before the Court. Every workman cannot be said to be concerned or interested in the result of the Industrial Disputes. Only those workmen who belong to the Union which has raised the dispute can be said to have interest in the result of the dispute pending before the Court. I would hold on the interpretation of section 37 read with section 38 that the workmen/ who seek the assistance of the Court under section 38 of the Ordinance must be a person interested in the result of the Industrial Disputes pending before the Court.
5. Mr. Moinuddin, in the next place, contended that the learned Industrial Court has not given any categorical finding that the appellant was not connected with the disputes that were pending before the Industrial Court. The appellant was connected particularly with Industrial Dispute No. 55 of 1965. The learned Advocate conceded that the appellant cannot be said to be in any connection with Industrial Disputes Nos. 9/67, 28/67, 37/67 and 47/67. He confined his arguments to Industrial Dispute No. 55 of 1967. Admittedly the appellant belongs to the Mobile staff of the Corporation. He was a Conductor in the Lahore Omnibus Service at the time when he was dismissed from Service.
He did not belong the Service of the Workshop of the Corporation. The Industrial Dispute No. 55 of 1965 was filed by the Five Representative of the Mehnatkar Union Lahore Omnibus Service Workshop. The two bodies namely the Workshop and the Mobile Service of the Corporation are quite distinct. The appellant, in my opinion, cannot said to have any interest with the dispute filed by the Representatives of the Union of the Workshop. Moreover it was for the appellant to establish before the Court that he was interested in an Industrial Dispute, which was initiated by the Representatives of the workmen of the Workshop. The Corporation had clearly stated in its statement that the appellant was not concerned with the Industrial disputes mentioned by him in his application before the Court. It is noteworthy that the appellant in his statement before the Court did not say a word as to whether he was connected with Industrial Dispute No. 55 of 1967. The burden lay on the appellant to prove that he was interested or concerned with Industrial Dispute No. 55 of 1965. These are the points that were urged. I find no force in these point, and dismiss the appeal.