' RAJA FAYYAZ AHMED (CHAIRMAN).--- The precise facts of the case are that Pakistan Mineral Development Corporation (PMDC) Head Office and Branch Office Staff Union 'CBA (Regd.) Head Office 13-H/9, Islamabad filed this petition under section 33(9) read with section 57(2)(c) of IRA, 2012 (hereinafter referred to as the Act) whereby it has sought for the enforcement of rights secured and guaranteed under the law/settlement for considering the workmen for promotion, perpetual injunction and restraining the respondent-corporation from appointment of officers (non-technical) from outside. Following relief has been claimed:--- "Under these circumstances and legal position of the case it is respectfully prayed that the impugned resorting to direct appointment of Assistant Managers (serial Nos. 5 and 6 of the advertisement dated 9-10-2012), by the respondent corporation may kindly be annulled and cancelled and respondent-corporation may be directed to consider promotion departmentally as per rules, settlements and undertakings in the best interest of justice and fair play."
2. It is the case of the petitioner (CBA) that the Chief Executive of the respondent-corporation, being the Managing Director has been empowered by its Board of Directors for appointment of staff and promotion from the staff, to the officers level (non-technical) as per rules approved by the Board and settlement with the CBA. The Board of Directors of the respondent-corporation, on its incorporation in the year 1974 adopted service rules approved in the year 1974 of its predecessor Corporation namely West Pakistan Industrial Development Corporation, framed in pursuance of section 23(2)(d) of West Pakistan Industrial Development Corporation Ordinance No,XXXVIII of 1962 as amended by Ordinance No, XXVI of 1971, called the West Pakistan Industrial Development Corporation Employees Services Rules.
3. The Board of Directors of the respondent-corporation (PMDC) in its meeting held on 3-8-1974 resolved that the Rules and Regulations relating to various affairs of PMDC are yet to be formulated and till such time the rules are finalized, it was decided that the existing rules and regulations of PMDC should be adopted in PMDC, as an interim measure. The relevant rule as adopted regarding appointments and promotions reads asunder:--- "All appointments against posts shall be made through properly constituted Selection Committee.
Vacancies in the higher posts shall normally be filled in by departmental promotions, taking seniority, merit, suitability and experience duly into consideration of which the Corporation shall be the sole judge. Direct recruitment shall be resorted to only in cases where departmental candidates are either not available or are found unsuitable. Technical experts and Advisors of non- Pakistan origin may be employed by The Corporation, but such appointments shall be governed by rules and regulations embodied in separate agreements entered into with such experts and advisors. "
4. It is contended that the above said rules shall remain in force till the respondent-corporation framed its own rules. The respondent-corporation framed PIMDC Employees Service Rules, 2012 approved by the Board of Directors on 24-1-2012 but; the implementation of these rules in respect of the staff and workers was suspended vide OM No, PMDC/EST-47(c), dated 20-4-2012 and a committee was constituted vide the aforesaid O.M. to discuss PMDC Employees Service Rules, 2012 in detail. It has been contended in the petition that according to the new rules appointments were to be made 75% through promotion and 25% by direct recruitment, which was objected to by the petitioner-union (CBA). Further the case of the petitioner is that the adopted rules hereinabove mentioned were never repealed which therefore, are in force. The list of the employees eligible for promotion as Assistant Manager has been filed as Annexure-D/1 to the petition. S. It has been contended in the petition that the settlement dated 22-8-2011 (Annexure-E) has been arrived at and executed between the parties for a period of two years, which was made on Demand No,7 of CBA besides the other demands put through Charter of Demands by the petitioner CBA. The settlement so arrived at between the parties relating to Demand No,7 is reproduced herein below in extenso for convenience:--- "DEMAND NO.07 PROMOTION AND RE-DESIGNATION OF STAFF/WORKERS
1. Management agreed in principle that additional posts in Officer Cadre will be created to accommodate the maximum staff members.
4. Senior most Security Guard at PMDC Head Office will be re designated as Security Inspector.
5. Staff member who is operating generator will be re-designated as Generator Operator.
14. Promotion Committee meeting will be conducted on yearly basis preferably in the month of January for the promotion of staff/workers and promotions shall be made on seniority-cum fitness basis to fill in vacancies, if any."
6. It is further the case of the petitioner that by virtue of settlement dated 23-6-2000 with the CBA, on Demand No,4 it was agreed that promotion to the officer cadre will be made in accordance with rules/policy reflected in OM No, PMDC/EST-11 dated 5-7-2000 whereby the existing promotion policy for stiff members to officer cadre was revised and it was decided that for the promotion to the post of Assistant Manager and equivalent, graduation shall remain the main criteria. However, in order to provide some encouragement to the non-graduate employees, promotion to the post of Assistant Manager will be granted to graduate and non-graduate Assistants (SG) in the ratio of 75% and 25% respectively i,e, after promotion of three graduates, one non-graduate will be promoted in the relevant disciplines, subject to availability of vacancies and fulfillment of other criteria. However, the non-graduate employees shall not be promoted beyond the level of Assistant Manager and equivalent.
7. In the light of the above referred facts, case has been set up by the petitioner CBA that in violation of the rules and settlement above-mentioned, the respondent-corporation made an advertisement in the Daily Dawn dated 9-10-2012 inviting applications for direct appointments against 4 available posts of Assistant Manager (Mkt/HR) and one post of Assistant Manager (Finance) appearing at Sl. Nos.5 and 6 of the advertisement and soon thereafter on having come to know of the said advertisement, the petitioner CBA submitted a representation on 17-10-2012 seeking for the annulment of the said advertisement to the extent of the proposed appointments to be made on posts described at Sl. Nos.5 and 6 of the advertisement but with no response, which resulted into the institution of the present petition.
8. Maintainability of the present petition instituted by the petitioner CBA has been questioned in view of the preliminary objections taken in the written statement filed on behalf of the respondent as well as; the same has seriously been contested on merits as well; on the grounds mentioned therein.
9. The learned Counsel for the parties have been heard at length as regards to the maintainability of the instant petition, in view of the preliminary objections raised in the pleading of the respondent-corporation.
10. The learned counsel for the respondent contended that under the law, the CBA cannot enforce any right guaranteed or secured by any law to the workmen under section 39(9) of IRA, 2012.
According to the learned Counsel the settlement executed between the employer and the CBA passes through the following stages and the CBA to act for the workmen during the first three steps:---
(a) "Submission of Charter of Demands by the Collective Bargaining Agent (CBA).
(b) Bilateral negotiations between the Employer and the CBA to promote an amicable settlement.
(c) Signing of Settlement by CBA on behalf of workmen and by an employer.
(d) Enforcement of any right guaranteed to workman.
(e) CBA is to act on behalf of workmen during the first three stages mentioned hereinabove, but it cannot enforce under section 33(9) of IRA, 2012 any right guaranteed or secured, inter alia, to any workman by or under any law.
(0 The right which has accrued as result of the settlement executive between the petitioner CBA and PMDC read with the PMDC employees Service Rules, 2012 is to the effect that 75% of vacancies will be filled by promotion and 25% will be filled through direct recruitment. The eligibility of PMDC employees to the extent of 75% of vacancies devolves on workers who may in the judgment of the Departmental Promotion Committee and the PMDC, be considered fit to hold the position of Assistant Manager. The crux of the matter is that the right to be considered for promotion as Assistant Manager in terms of 75% quota is the individual right and not the right of the CBA."
'Secondly according to the learned Counsel, rights secured as a result of the settlement executed between the CBA and PMDC or under the law, read with PMDC employees Service Rules, 2012 is to the effect that 75% of vacancies will be filled by promotion and 25% by direct recruitment. The former mentioned vacancies related to the workers who D may be found fit for selection by the Departmental Promotion Committee to hold the position of Assistant Manager and the right to be considered for promotion as Assistant Manager in terms of 75% quota is the individual right and not the right of the CBA hence, it has strenuously been argued that the instant petition filed by the CBA for the enforcement of the right for promotion is not maintainable under the law, moreover; the author of grievance notice dated 17-10-2012 served on the Managing Director of respondent- corporation is the Pakistan Mineral Development Corporation (Pvt.) Ltd. Staff Union (CBA) thus the grievance petition filed by the CBA is not tenable in law which ought to have been submitted by the workers in their individual capacity and the improper service of the grievance notice is fatal to the maintainability of the instant petition.
' Reliance has been placed in support of the aforementioned contentions on the reported judgments in the cases i,e, Karachi Pipe Mills Employees Union, Karachi v. Karachi Pipe Mills Ltd.
Karachi (1992 SCM R 36); Mazdoor Union Faran Sugar Mills through General Secretary v. Faran Sugar Mills Ltd. and 2 others (2006 PLC 404) and Bolan Textile Mills v. Workers Union Bolan Textile Mills and 2 others (1986 PLC 751).
' In the context as argued, reference has been made to the provisions of sections 3(c), 13 followed by sections 14 and 19, sections 20, 22, 23, 25, 27 and 35 to 38 which relate to an industrial dispute or is likely to arise, the employer or as the case may be; the Collective Bargaining Agent may communicate his or its view in writing either to Works Council and copy of the communication shall also be sent to the other party and on failure of bilateral negotiations in the Works Council, the employer or the Collective Bargaining Agent may within the prescribed time serve on the other party of the dispute, a notice of lock-out or strike as the case may be in accordance with the Act and simultaneously with the service of such notice, deliver a copy of such notice to Conciliator and to the Commission and further proceeding to be undertaken as provided by the succeeding sections on the subject. It has further been contended that the question agitated in the instant petition and the relief claimed clearly spell out that the grievance related only to a very small number of workers claiming to be entitled for promotion according to the quota against the available vacancies who claimed to be qualified for selection and appointment and in such behalf section 60 of the IRA, 2012 as regards the enforcement of guaranteed rights has been referred which provisions are para-mataria to section 25-A read with 34 of the IRO, 1969 as well as; to subsection (9) of section 33 of Act Ibid.
11. The learned counsel for the petitioner contended that the instant petition has competently been filed by the CBA for the enforcement of the guaranteed rights under the law and settlement which does not relate to an individual right but involved an enforceable rights of the Workmen of the establishment thus; the CBA legitimately on the subject served grievance notice on the employer and the petition accordingly has been instituted for the enforcement of the guaranteed rights under the law and settlement under section 33(9) of the Act ibid and; the contentions to the contrary with regard to the non-maintainability of the petition instituted by the petitioner CBA is devoid of substance. However; the learned counsel categorically submitted that the provisions of sections 33(1) and (9) are analogous to, as contained in sections 25-A and 34 of IRO, 1969. As regards the case-law cited by the learned Counsel for the respondent-corporation, it is submitted by the learned Counsel for the petitioner that the subject-matters of the judgments may be noticed as well as; he also placed reliance on 1992 SCM R 36. Lastly it has been argued that as the interests of all the workers are involved therefore, the instant petition has been filed by the petitioner CBA.
12. For better understanding and to appreciate the arguments put-forth by the learned Counsel for the parties, section 33 of IRA (Act X of 2012) and section 25-A of the IRO, 1969 hereafter referred to as the Ordinance in view of the case-law cited by the learned counsel for the management, are reproduced herein below in a comparative form:--- S.33 of IRA, 2012. Redress of Individual Grievances.---
(1) A worker may bring his grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement for the time being in force to the notice of his employer in writing, either himself or through his shop steward or collectiveS.25-A of IRO, 1969. Redress of Individual Grievances.--- (1) A worker may bring his grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement for the time being in force to the notice of his bargaining agent within ninety days of the day on which the cause of such grievance arises. (2) Where a worker himself brings his grievance to the notice of the employer, the employer shall, within fifteen days of the grievance being brought to his notice, communicate his decision in writing to the worker. (3)
Where a worker brings his grievance to the notice of his employer through his shop steward or collective bargaining agent, the employer shall, within seven days of the grievance being brought to his notice, communicate his decision in writing to the shop steward or as the case may be, the collective bargaining agent. (4) If the employer fails to communicate a decision within the period specified in subsection (2) or, as the case may be subsection (3), or if the worker is dissatisfied with such decision, the worker or the shop steward may take the matter to his collective bargaining agent or to the Commission or, as the case may be, the collective bargaining agent may take the matter to the Commission, and where the matter is taken to the Commission, it shall give a decision within seven days from the date of the matter being brought before it as if such matter were in an industrial dispute:Provided that a worker who desires to so take the matter to the Commission shall do so within a period of sixty days from the date of the communication of the employer or, as the case may be, from the expiry of the period mentioned in subsection (2), or subsection (3), as the case may be. (5) In adjudicating and determining a grievance under subsection (4), the Commission shall go into all the facts of the case and pass such orders as may be just and proper in the circumstances of the case. (6) If a decision under subsection (4) or an order under subsection (5) given by the Commission or a decision in an appeal against such a decision or order is not given effect to or complied with within a seven days or within the period specified in such order or decision, the defaulter shall be punishable with imprisonment for a term which may extent to one year, or with fine which may extend to seventy- five thousand rupees, or with both. (7) No person shall be prosecuted under subsection (6) except on a complaint in writing:--- (a) by the workman if the order or decision in his favour is not implemented within the period specified therein; or (b) by the Commission if an order or decision thereof is not complied with. (8) For the purposes of this section,employer in writing, either himself or through his shop steward or (collective bargaining agent), within three months of the day on which cause of such grievance arises. (2) Where a worker himself brings his grievance to the notice of the employer, the employer shall, within fifteen days of the grievance being brought to his notice, communicate his decision in writing to the worker. (3) Where a worker brings his grievance to the notice of his employer through his shop steward or (collective bargaining agent) the employer shall, within seven days of grievance being brought to his notice, communicate his decision in writing to the shop steward or, as the case may be, the (collective bargaining agent). (4) If the employer fails to communicate a decision within the period specified in subsection (2) or, as the case may be subsection (3), or if the worker is dissatisfied with such decision, the worker or shop steward may take the matter to his (collective bargaining agent) or the (labour court), or, as the case may be, the (collective bargaining agent) may take the matter to the (Labour Court), and where the matter is taken to the (Labour Court), it shall give (a decision) within (seven) days from the date of the matter being brought before it as if such matter were in an industrial dispute:Provided that a worker who desires to so take the matter to the (Labour Court) shall do so within a period of two month from the date of the communication of the employer or, as the case may be, from the expiry of the period mentioned in subsection (2) or subsection (3), as the case may be. (5) In adjudicating and determining a grievance under subsection (4), the [Labour Court] shall go into all the facts of the case and pass such orders as may be just and proper in the circumstances of the case. (6) Omitted by Ordinance IX of 1977.(7) Omitted by Ordinance IX of 1977. (8) If a decision under subsection (4) or an order under subsection
(5) given by the Labour Court or a decision workers having common grievance arising out of a common cause of action may make a joint application to the Commission. (9) Any collective bargaining agent or any employer may apply to the Commission for the enforcement of any right guaranteed or secured to it or him by or under any law or any award or settlement. (10) There shall be a Tripartite Counsel for review of grievances of workers in the Islamabad Capital Territory comprising not less than three members each of the workers, employers and the Government:Provided that the representatives of the workers and the employers shall be nominated by the Government after consultation with registered trade unions and employers' organizations to the notified in the Official Gazette.of the Tribunal in an appeal against such a decision or order is not given effect to or complied with within a week or within the period specified in such order or decision, the defaulter shall be punishable with imprisonment for a term which may extent to one year, or with fine which may extend to one thousand rupees. (9) No person shall be prosecuted under subsection (8) except on a complaint in writing:--- (a) by the workman if the order or decision in his favour is not implemented within the period specified therein, or (b) by the Labour Court or Tribunal, if an order or decision thereof is not complied with. (10) For the purposes of this section, workers having common grievance arising out of a common cause of action may make a joint application to the Labour Court.
13. The learned Counsel for the respondent has also made reference to the scheme of the Act by citing certain provisions referred to in para-10 supra in relation to an industrial dispute. The term 'Industrial Dispute' has been defined in clause (xvi) of section 2 of the Act and means any dispute or difference between employers aid employers or between employers and workmen or between workmen and workmen which is connected with the employment or non-employment or the terms of employment or the conditions of work of any person. Reference was also made to clause (c) of section 3 of the Act which provides that every trade union and employers Association shall frame its own constitution and rules to elect its representatives in full freedom to organize its administration and activities and to formulate its programmes. The functions of Collective Bargaining Agent have been specified in section 20 of the Act whereby the Collective Bargaining Agent in relation to an establishment or group of establishments shall be entitled to undertake collective bargaining with the employer or employers in relation to matters of employment, non- employment, the term of employment or the conditions of work other than matters which relate to the enforcement of any right guaranteed or secured to it or any workman by or under the law, other than this Act, or any award or settlement. A Collective Bargaining Agent is also entitled to represent all or any of the workmen in any matter or judicial proceedings under this Act besides; a Collective Bargaining Agent can give notice of, and declare, a strike in accordance with the provisions of this Act and can nominate representatives of workmen on the Board of Trustees of any welfare institutions or Provident Funds and of Workers Participation Fund established under the Companies Profits (Workers Participation) Act, 1968 (XII of 1968) as well as; by virtue of subsection
(2) of section 20, a Collective Bargaining Agent may, without prejudice to its own position, plead as a party to any proceedings under this Act to which it is itself a party or any federation of trade unions of which it is a member. The nomination, election and tenure and functions of Shop Steward have been given respectively in sections 23 and 24 of the Act ibid whereas; the composition of the Works Council has been provided in section 25 of the Act while the functions of the Works Council have been enumerated in the following section to the extent of workers participation in the management, election or nomination, tenure of office, participation in all the meetings of the committee constituted in the prescribed manner in all matters relating to the management, Factory/Establishment except Commercial and Financial transaction for the purpose of discussion and; the restriction on the decision of the management without the advice in writing of workers representatives including the procedure has been given in section 27 of the Act.
14. The instant application has been filed under section 33(9) read with section 57(2)(c) of the Act.
The functions of the Commission have been given in section 54 and the additional powers with which the Commission has been invested are specified in section 57 of the Act. In relation to the case in hand, the relevant provisions of sections 54 and 57 of the Act are reproduced herein below for convenience: "Section 54: Functions of the Commission.--- The following shall be the functions of the Commission, namely:---
(a) to adjudicate and determine an industrial dispute in the Islamabad Capital Territory and trans- provincial to which a trade union or a federation of such trade unions is a party and which is not confined to matters of purely local nature and any other industrial dispute which is, in the opinion of the Government, of national importance and is referred to it by that Government;
(b) to register trade unions and industry-wise trade unions of an establishment of group of establishments in the Islamabad Capital Territory and trans-provincial, and federations of such trade unions;
(c) to determine the collective bargaining agents amongst trade unions and industry-wise trade unions in the Islamabad Capital Territory and trans-provincial and federations of such trade unions;
(d) to try offences punishable as under-- (i)
(ii)
(e) to deal with cases of unfair labour practice specified in sections '31 and 32 on the part of employers, workers, trade unions of either of them or persons acting on behalf of any of them, whether committed individually or collectively, in the manner laid down under section 33 or subsection (9) section 33 or in such other way as may be prescribed, and to take, in such manner as may be prescribed by regulations under section 66, measures calculated to prevent an employer or workman from committing an unfair labour practice; (f)
(g) to take measures calculated to prevent an employer or workman from committing an unfair labour practice in such manner as may be determined by regulations.
(h) to deal with cases of individual grievance in the manners prescribed in section 33.
(i) to exercise exclusive jurisdiction over the establishment or group of establishments situated in the Islamabad Capital Territory and trans-provincial; and
(j) such other powers and functions as the Government may, by notification in the official Gazette, assign to it from time to time.
(k)
Section 57: Additional powers of the Commission.--- (1) In addition to powers which the Commission has under this Act--- (a)
(b)
(2) The Commission may, on the application of a party, or of its own motion,
(a) initiate prosecution, trial or proceedings, or take action, with regard to any matter relating to its functions; (b)
(c) grant such relief as it may deem fit including interim injunction.
(3) For the purpose of dealing with a case of unfair labour practice of which the Commission is seized, the Commission may---
(a) proceed directly with the case;
(b) ........................
(c) ..............................
(4) ............................................
(5)
15. The learned Counsel for the parties are in agreement on the proposition that the provisions of section 25-A and section 34 of the Ordinance are analogous to the provisions as contained in sections 31 and 33 of the Act (Act X of 2012). The aforesaid provisions contained in both the laws are almost materially and in substance, the same except that under the IRO, 1969 a Collective Bargaining Agent or a workman in case. of 'Industrial Dispute' was to approach the concerned Labour Court for the relief whereas; under the present Act, they or either of them can move to the Commission as the case may be, in relation to matters falling within the exclusive domain of the Commission within the meaning of sections 54,,57 read with sections 31, 32 and 33'of the Act Ibid.
16. Adverting to the cited case-law, it may be observed that the same being beneficial and applicable on the proposition can appropriately be referred. In the case of Bolan Textile Mills v.
Labour Union Bolan Textile Mills and 2 others; the Hon'ble Judges of the Division Bench reported in 1986 PLC 751 on a similar question involved in the said case and having taken into consideration the cited judgments in the case of Allied Bank of Pakistan Limited and 2 others v. Labour Appellate Tribunal, Lahore and 2 others reported in 1982 PLC 1; Karachi. Pipe Mills Limited v. Sindh Labour Appellate Tribunal and 2 others 1984 PLC 1359 and Oil and Gas Development Company through its Chief Admn. Officer v. Punjab Labour Appellate Tribunal Central Zone and others 1975 SCM R 485 (relied upon), Held as under:--- "We are inclined to hold that there are four stages for a settlement in terms of Labour Laws, namely,
(i) raising of a demand by a Bargaining Agent for the benefit of workmen, (ii) negotiations between a Bargaining Agent and an employer, (iii) signing of a settlement by a Bargaining Agent on behalf of the workmen and by an employer and (iv) the enforcement of the settlement of any right guaranteed to workmen under any law, award or settlement. A Collective Bargaining Agent is to act on behalf of workmen during the first three stages mentioned hereinabove, but it cannot enforce under section 34 of the I.R.O. any right guaranteed or secured, inter alia, to any workman by or under any law. We are further inclined to hold that under clause (b) of subsection (12) of section 22 of the I.R.O. a Collective Bargaining Agent is authorized to represent all or any of the workmen in any proceeding in terms of the I.R.O. and not in any proceeding which may be in violation or derogation of the I.R.O. We are in respectful agreement with the view expressed in the above Full Bench case, which is applicable on all fours to the instant case."
' Relevant paragraph from the Full Bench judgment of the Hon'ble Sindh High Court, Karachi relating to the proposition, as in the instant case has also been quoted in the above said case-law which reads as under:--- "Karachi Pipe Mills Limited v. Sindh Labour Appellate Tribunal and 2 others, reported in 1984 PLC 1359. In the above case, the facts were that the petitioners had impugned the order of the Labour Court and the Sindh Labour Appellate Tribunal, inter alia, on the ground that a Collective Bargaining Agent was not entitled to maintain an application under section 34 of the I.R.O. for enforcement of any right or benefit secured for the benefit of the workers under any law, award or settlement. The above writ petition was heard by a Full Bench. The judgment was delivered by Naimuddin, J. (as he then was). After analyzing the various provisions, it was held that section 34 of the I.R.O. could not have been invoked by the Collective Bargaining Agent for the enforcement of right guaranteed to workers under any law, award or settlement in view of the express exclusion contained in the above quoted clause (a) of subsection (12) of section 22 of the I.R.O. It will be advantageous to reproduce herebelow paras. 19, 20 and sub-para. (2) of para. 21 of the above judgment, which read as follows:--- ' Para. 19.--- We are further fortified in our view by the provision of section 22(12) clause (a) of the Ordinance which entitles the Collective Bargaining agent in relation to an establishment or group of establishments to undertake collective bargaining with the employer or employers on matters connected with employment/non-employment, the terms of employment or the conditions of work but this right excludes from its purview matters which relate to the enforcement of any right guaranteed or secured to it or to any workman by or under any law other than the Ordinance or any award or settlement. From this provision it is clear that the Collective Bargaining Agent can undertake collective bargaining with the employer or employers on matters connected with employment, non-employment, the terms of employment or the conditions of work; but so as a worker is concerned the rights guaranteed or secured to him under any law or any award or settlement have to be enforced in accordance with the provisions of section 25-A of the Ordinance and if the Collective Bargaining agent could not have collective bargaining for the enforcement of any right guaranteed or secured to a workman by or under any law other than the Ordinance then the intention of the Legislature clearly appears to be that such rights of workman have to be enforced in accordance with the provisions of section 25-A of the Ordinance and not under section 34 of the Ordinance."
17. In the case of Allied Bank of Pakistan Limited by making distinction between sections 34 and 25- A of the IRO, 1969 the Hon'ble Court, held that- "a Collective Bargaining Agent can move Labour Court only for enforcement of any right guaranteed or secured to it by or under any law, award or settlement, but it cannot apply to a Labour Court for enforcement of a right guaranteed or secured to workers by or under any law, award or settlement. A constitutional Writ petition was, therefore, allowed against the orders of the Punjab Labour IX, Multan and the Labour Appellate Tribunal, Punjab."
18. The brief facts of the case of which the Hon'ble Division Bench of the Quetta High Court was seized of in writ jurisdiction have been recapitulated in the judgment in the following words:-- "That the petitioner had provided residential accommodation to some of its employees free of rent, but at the same time were also paying the rent to them after deducting 25 per cent from the monthly rent amount. It seems that the Board of Directors of the petitioner's company first decided to deduct 50 per cent instead of 25 per' cent by a circular, dated 28th February, 1982 from the rent amount which was paid to some of its employee in addition to providing free residential accommodation. It may also be observed that by another circular, dated 20th August, 1983, the petitioner's company decided to deduct the above house rent 100 per cent with effect from 1st July, 1983. In other words not to pay any cash house rent to the employees who were provided residential accommodation free of rent. Respondent No,1 which is the Union of Bolan Textile Mills, Baleli, Quetta resisted the above action and file& an application. under section 34 of the Industrial Relations Ordinance, 1969."
19. The above said reported judgments besides the other case-law on the subject came-up for consideration before the Hon'ble Supreme Court in the case of Karachi Pipe Mills Employees Union, Karachi v. Karachi Pipe Mills Ltd., Karachi reported in 1992 SCM R 36 with reference to the provision of sections 23, 24, 25-A, 26, 29, 30, 31, 34 and 39 of IRO, 1%9 and it was Held, that the provision of section 25-A(1) and section 34 of IRO, 1969 are identical in nature, application could be made for the enforcement of any right guaranteed and secured by or under any law or any award or settlement.
The forum is also the same and such application is to be moved to the Labour Court. The CBA can move application under section 34 of the Ordinance whereas; the individual worker can move application under section 25-A of the Ordinance. After analyzing the provisions of section 22 .(12) read with subsection 12(b) of IRO, 1969 and the case-law referred to in the said judgment, the Hon'ble Supreme Court has held that in case of individual grievance of a worker for predetermined right, application is to be made under section 215-A of the Ordinance and the procedure laid down in this provision has to be complied with before moving the Labour Court. Further the Hon'ble Court held that the CBA has also been empowered in case of individual grievance where a worker has brought his grievance to the notice of its employer through its Collective Bargaining Agent. The Hon'ble apex Court with reference to the facts of the case as regards the enforcement of rights guaranteed to the worker under the Factories Act, 1934 concluded that CBA was not entitled to make application under section 34 of the Ordinance.
' In relation to the functions of CBA, the Hon'ble Supreme Court in the above said judgment has held as under:-- "One of the functions of the CBA is to raise an industrial dispute when there was any difference between employers and employees or between employer and workmen which was connected with the employment or non-employment or terms of employment or the conditions of work of any person and it should involves a lot of workers. The Collective Bargaining Agent would sponsor such dispute, it is only a collective dispute that could be considered an industrial dispute and combined interest of all the workers would be the prime factor for raising such dispute. Action or omission on the part of the employer which affects more than one worker would constitute industrial dispute..
Similarly when the workers do something in derogation of law or abstain from doing such thing which they are legally bound to do it, the employer could raise an industrial dispute. In such a situation, the Collective Bargaining Agent would undertake collective bargaining in addition to rights already guaranteed. It means to raise new dispute concerning employment, non- employment or conditions of work. The collective bargaining by Collective Bargaining Agent would not mean that Collective Bargaining Agent under section 34 would also represent all the workers before the Labour Court in respect of the collective grievance of the workers. The primary functions of Collective Bargaining Agent is to resolve dispute before the parties go to the Court which is for the healthy promotion of relations between the employer and the workers."
' In line with the cited case-law, the learned Member of the Commission in the case of Mazdoor Union Faran Sugar Mills through General Secretary v. Faran Sugar Mills Limited through Chief Executive and 2 others reported in 2006 PLC 404 concluded that a Collective Bargaining Agent had no right to espouse the causes of workers and could not approach National Industrial Relations Commission for redressal of. individual grievances of workers seized of the matter in relation to the facts of the case, reproduced hereinbelow:--- "That the petitioner's union is registered and is also CBA in the establishment of respondents. The petitioners have alleged that the respondents from the very inception are against the trade union activities in their establishment and they have always been pressurizing the members of the union not to carry out their trade union activities. They have alleged that the respondents had been pressurizing their office-bearers to resign from the union otherwise they will be terminated from service. They gave instances that when their General Secretary Abdul Karim Mangwano did not resign from the union, he was dismissed from service and he had to file grievance petition before the Labour Court where it is still pending. They have further stated that it is the practice of the respondents to show losses in each year to make a ground for retrenchment of the employees.
They have further alleged that in 2001-2002 the respondents had shown losses in their balance sheet which were challenged by the petitioner union and such application was given to the Director Labour for re-audit of the accounts which application is still pending with the Labour Department. The petitioner union has alleged that for the season for 2002-2003 the union had unilaterally offered to the respondents some measures in good faith to overcome the losses of difficulties being faced by the respondents. In this connection they executed settlement on 30-12- 2002 by which the union waived their right of bonus and annual increments and also agreed for the payment of electricity bills. According to then due to this settlement from 1-1-2003 to April, 2003 the factory functioned without any hindrance or without any problem. Their case is that crushing came to an end on 11-4-2003 whereafter season and retains workers were relieved. They have alleged that in the previous years the workers were being sent on forced leave after the conclusion of season but this year a settlement was reduced into writing whereby it was agreed that the workers will be sent on en bloc holidays from 18-4-2003 to 25-5-2003 and those who have no leave in their credit will be granted advance leave from their coming year. It was also decided that payment for the month of April, 2003 will be made on 17-4-2003. The petitioners have further alleged that on 17-4-2003 at about 11-30 a.m. the General Secretary and President of the union were called by respondents Nos.1 and 2 in their office and impressed upon them that the union should not submit their charter of demands on 1-5-2003 and one year's extension may be approved in the existing settlement and that there should be extension of one month in en bloc holidays from 18-4-2003 to 25-5-2003 which may be extended upto 26-6-2003 and that retainee workers may be allowed to be converted into seasonal workers on which the union show no objection. The petitioners have stated that they did not concede to these demands of the respondents and said that they will submit their charter of demands on due date and it will be decided through bilateral negotiations. The petitioners have alleged that all of sudden on 18-4- 2003 they found a notice published in daily newspaper "IBRAT" that services of 426 workers have been terminated which is more than 50% of total strength and as such it is in violation of S.0.11-A of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and is unfair labour practice on the part of respondents. They have further alleged that on 16-4-2003 the respondents had filed petition before Labour Court No,6, Hyderabad under section 11-A of Standing Orders Ordinance where it is still pending and only notice has been issued to the union whereas no permiss?on to terminate the services of employees or for closure of the establishment has yet been granted by the Labour Court. The petitioners have alleged that against the termination of 426 workers they made complaint to the higher authorities including Chief Minister of Sindh, Labour Department and other high authorities that the respondents have illegally terminated the services of 426 workers and on their application the Labour Director called the meeting of the management and the union but the respondent refused to abide by the decision of the Director Labour. The petitioner have alleged that the respondents have employed armed people in their factory premises who are harassing and victimizing the employees and are also giving them temptations to resign from their posts. The petitioners have finally alleged that the reasons for termination given by the respondents are false, factitious and fabricated as the respondents have earned huge profits in this season as in this season they have purchased the sugarcane at the Rs,43 per maund whereas in the previous season it was purchased by the respondents at from Rs,50 to Rs,80 hence they purchased the sugarcane at the cheaper rate and crushed more sugarcane and they produced more sugar and gained heavy profits. The petitioner have prayed that action of the respondents in terminating more than 50% employees without permission of Labour Court are the acts of unfair labour practice and that the whole process taken by the respondent may be declared as act of unfair labour practice and that the terminated employees, may be restored to their original position."
20. Within the meaning of subsection (1) of section 33 of the Act, a worker may bring his grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement for the time being in force to the notice of his employer in writing, either himself or through his shop steward or collective bargaining agent within ninety days of the day on which the cause of such grievance arises.
21. Admitted feature of this case is that notice in respect of the grievance in question was given by the CBA and not by any individual workman. In this context in respect of grievance of guaranteed or secured rights, the provisions of section 60 of the Act can conveniently be referred which provides that any CBA or any employer may apply to the Commission for the enforcement of any right guaranteed or secured to it or him or to the workers collectively by or under any law, award, settlement or decision, which is in contradiction to the provisions as contained in subsection (9) of section 33 of the Act. By virtue of Section 60 of the Act for the enforcement of any right guaranteed or secured to it, signifies and has reference to a CBA or to the workers collectively, gives authority to a CBA who may apply to the Commission for the enforcement of any right guaranteed or secured by or any law or settlement or decision and viz-a-viz to an employer. The word 'collectively' used in section 60 has a direct nexus with the workers and the word 'him' used in section 60 in my humble opinion relates to an employer thus; it is abundantly clear on the plain reading of section 60 of the Act that as regards any right guaranteed or secured to any CBA or to the workers collectively by or under any law, award, settlement or decision, a CBA or any employer as the case may be can apply to the Commission therefore, in view of the facts of the present case it has to be seen as to whether the enforcement of any right guaranteed or secured to the workers collectively or to the CBA in the light of section 60 has been sought for to be enforced by the CBA or otherwise. The instant petition has been filed under subsection (9) of section 33 of the Act. Section 33 exclusively deals with the individual grievances. The words used in subsection (9) of section 33 empowering a CBA or any employer to apply to the Commission for the enforcement of any right guaranteed or secured to it or him or by any law or award or settlement; has direct nexus to matters relating to the redressal of individual grievance within the meaning of subsection (1) of section 33 of the Act and thus in the matter of individual grievance of a worker, in respect of any right guaranteed or secured to him by or under any law or any award or settlement is to be enforced by a worker by bringing the grievance either himself or through his shop steward or CBA to the notice of his employer in writing. In the instant case none of the worker has brought the grievance intended to be enforced to the notice of his employer through the CBA who instituted the present petition. It is quite evident from the relief claimed in the petition and the pleading of the petitioner that the grievance related only to a limited number of workers claiming to be entitled for promotion according to the quota against the available vacancies who claimed to be qualified for selection and appointments against the post of Assistant Manager (MKT HR) and Assistant Manager (Finance) 4 posts and 1 post respectively in respect whereof the impugned advertisement was published in Daily Dawn dated 9-10-2012. Hence in such factual view of the matter, it can hardly be said that in respect of such vacant seats any right was guaranteed or secured collectively to or in favour of all the workers to be considered for promotion against the said vacancies under any law or award or settlement for the time being inforce or in favour of the CBA, to which the answer could be in negative simpliciter. The CBA in the instant case as regards the demand relating to the promotion of workers against quota of posts passed through the initial three stages highlighted in the reported judgment, 1986 PLC 751 reproduced hereinabove; cannot in the absence of the grievance notice served through it by the concerned worker/s and in the light of the case-law maintain the petition under subsection (9) of section 33 of the Act. In the peculiar circumstances of the case, as the CBA has filed the petition for enforcement of rights secured and guaranteed, as contended under the rules and settlement for a limited qualified workers claiming to be eligible to be considered against the vacancies therefore, notwithstanding the non-maintainability of the petition for the forgoing reasons; the aggrieved workers may press their grievance within the purview of subsection (1) of section 33 of the Act. The question of limitation, if the matter is brought before the Commission may warrant consideration in the light of the institution and pendency of the instant proceedings intended to be enforced for the cause of such workers. As a result, for the foregoing reasons this petition moved by the CBA is dismissed as not maintainable.