DECISION On the applications of the applicants and after hearing the parties this Tribunal called for R & Ps of the two applications pending before the learned Labour Court No, V to examine the legality of the order passed by the said Court in the two applications Nos. 12 of 1989 and 13 of 1989 on 14-6-1989.
As the facts and legal points in both the Revision Applications are similar both these applications would be disposed of by this single order.
2. The brief facts of the case are that Khan Brothers Port Qasim Dock Handling, Cargo Operaters and Cleaning Workers Union (hereinafter referred to as 'Khan Brothers Union') Karachi was granted `C.B.A. Certificate ' for the workers working with Khan Brothers and M/s. Delta Ark Services (Pvt.) Ltd., the two respondents in these applications on 1-12-1986 which was valid for two years and would be deemed to expire on 1-12-1988. The Port Qasim Tally Staff Union (hereinafter referred to as 'Tally Staff Union) which is the applicant in both the Revision Applications in this Tribunal was formed on 2-10-1988 and was granted `C.B.A. Certificate' by the Registrar on 1-11-1988. The Khan Brothers Union was also granted fresh `C.B.A. Certificate' by the Registrar on 27-2-1989. It may also be pointed out that in the case of both Unions the `C.B.A. Certificate' was granted by the Registrar without notice of the referendum to either of the unions. On 19-1-1989 Tally Staff Union gave notice of strike to the respondents viz. Khan Brothers Associates (Pvt.) Ltd. and Delta Ark Services (Pvt.) Ltd. and consequently conciliation proceedings were initiated. The respondent establishment admittedly moved the Labour Court No, IV two applications under section 34 I.R.O. for stay of conciliation proceedings which were first stayed by the Labour Court but Stay Order was subsequently vacated by order dated 28-51989. In these applications, according to Mr. Farooq Abdul Ghani, learned counsel for the respondents, the prayer was for declaration that Tally Staff Union was illegal union and for the stay of the conciliation proceedings. These applications, later on, were withdrawn by the establishment. It appears from the file of Mr. Farooq Abdul Ghani that establishment had moved application for withdrawal of above applications with the prayer that they may be allowed to file fresh applications. Admittedly the order of the learned Labour court does not show in clear words that any permission was granted and furthermore admittedly this order was passed without notice to the other side and therefore permission could not have been granted. It is submitted by Mr. S.P. Lodhi that under these circumstances the present application under section 34 I.R.O. filed by the respondent on the same facts and legal pleas and in which in essence same reliefs were sought were not maintainable.
3. The main contention of Mr. Farooq Abdul Ghani is that there can be no two `C.B.As.' in one establishment and that the grant of certificate to the applicants as C.B.A. was illegal and void and, therefore, all the proceedings initiated and taken by them have no legal effect. Mr. Farooq Abdul Ghani contends that C.B.A. Certificate granted to the Tally Staff Union was without referendum whereas C.B.A. Certificate granted later to the Khan Brothers Union was after notice to the other unions excepting the Tally Staff Union. It is submitted by him that if the Registrar failed to issue notice to the Tally Staff Union the Khan Brothers Union cannot be punished for the omission committed by the Registrar. This argument can also be adopted by the Tilly Staff Union and they can also plead that if the Registrar failed to issue notice of referendum to other Unions they cannot be held responsible.
4. Mr. Farooq Abdul Ghani's contention that there can be only one `C.B.A.' in the establishment appears to have great force but the fact remains rightly or wrongly that the Registrar had issued `C.B.A.' Certificates' to both the Unions, none of which has been cancelled. As pointed out above in the case of issuance of `C.B.A. Certificate' to the Tally Staff Union no notice of referendum as contemplated under section 22(3) of I.R.O. was issued to any of other Unions. Mr. Shafi Mohammad Palejo, Labour Officer, is present for the Registrar of Trade Unions. He states that there are 4 unions besides Tally Staff Union in Port Qasim for Dock Workers. He also conceded the factual position that no notice was issued to any union before grant of `C.B.A. Certificate' to Tally Staff Union and no notice was issued under section 22(3) of I.R.O. to the Tally Staff Union before issuing `C.BA.
Certificate' to M/s. Khan Brothers Unions.
5. Mr. Farooq Abdul Ghani contends that the settlement entered into by the management with Khan Brothers Union would be binding on all the workmen whether or not they are members of the Union. There can be no dispute to this contention. However the fact remains that the Tally Workers had formed their own Union at the time `C.B.A. Certificate' was issued to Khan Brothers Union and settlement was arrived at with Khan Brothers Union. As stated above this `C.B.A. Certificate' was issued to Khan Brothers Union without notice of referendum under section 22(3) to the Tally Staff Union. As such prima facie the agreement arrived at with the Khan Brothers Union would not appear to be binding upon the Tally Staff Union or its members under the circumstances of the case. It may also be pointed out that Khan Brothers Union is neither party to proceedings either before learned Labour Court or before this Tribunal nor appears to be aggrieved by the grant of `C.B.A. Certificate' to the Tally Staff Union. The learned Labour Court is advised to issue notice to the Khan Brothers Union and join them as a party so that full picture may be clear before the learned Labour Court at the time when the matter is finally decided.
6. The position that emerges from the above discussion is that `C.B.A. Certificates' were issued to both the Unions which are still in force. These were issued by competent authority which have not been cancelled under the provisions of I.R.O. Both these `C.B.A. Certificates' appears to have been issued without observing a proper procedure as laid down under section 22 of the I.R.O. which fact is clear from the aforementioned oral statement of Mr. Shafi Mohammad Palejo. The `C.B.A.
Certificate' was issued to the applicant on 1-111988 and they gave notice of strike on 19-1-1989 .
After these dates `C.B.A. Certificate' was issued to the Khan Brothers Union on 27-2-1989 and the respondents being in knowledge of the above facts still entered into settlement with Khan Brothers Union on 20-4-1989. The issuance of the impugned Interim Order by the learned Labour Court, under the circumstances, would amount to holding that `C.B.A. Certificates' issued to Khan Brothers Union were valid and whereas the one issued to applicant was illegal and that the settlement with Khan Brothers Union was binding upon the members of the applicant union. The learned Labour Court has not considered the question as to whether the earlier applications under section 34 I.R.O. filed by the respondents were on the same facts and legal pleas on which present applications have been filed and what would be the effect of the withdrawal of the previous application on the maintainability of the present applications in absence of permission by the Labour Court to file fresh applications. All these questions are questions of fact and can be decided by the learned Labour Court either after recording evidence or on admissions of the parties. Under the circumstances it will not be proper or legal to deprive the applicants whose `C.BA. Certificate' is still not legally cancelled from pursuing their rights or duties conferred upon them by the Court. I, therefore, set aside the impugned order. However, the observations made in this order are of tentative nature and would not affect final decision by the learned Labour Court. The Registrar may also consider observations made by this Tribunal and take such action in accordance with law which he deems proper.