DECISION ' These 2 revision applications have been filed by the common applicants praying that this Tribunal may examine the legality, propriety and correctness of the orders passed by the learned Labour Court on 19-2-1990 and 1-3-1990. As the points of Law on which these applications are Moved are same in both these revision applications, I will dispose them of by this single Decision.
2. I have heard Mr. Rafat Osmani, learned Advocate for the applicants; Mr. Shabbir Usmani, General Secretary of the respondent union and also Mr. Rahat Ahmad Khan, Assistant Director for the Registrar, Trade Unions, Government of Sindh, Karachi; and have also gone through the relevant documents produced by the parties.
3. Admittedly the respondent union in the establishment of the applicants was registered by the Registrar, Trade Unions on 11-1-1984. In 1985, the respondent union raised an industrial dispute before the learned Labour Court under section 32(1-A) of the Industrial Relations Ordinance, 1969, which was dismissed by the learned Labour Court on the ground that Industrial Relations Ordinance, 1969, was not applicable to the establishment of the applicants as the applicants were a service connected with and incidental to Armed Forces of Pakistan. In Appeal No,KAR-29 of 1986, decided on 7-9-1988, this Tribunal, after discussing the question at issue, held that the Industrial Relations Ordinance, 1969, was applicable to the applicants establishment and had remanded the case back to the learned Labour Court for further proceedings. The applicants filed a Constitution Petition No,D-1037 of 1988 against the decision of this Tribunal which was admitted by the learned Division Bench of the High Court of Sindh on 10-10-1988. The Constitution petition was admitted by the High Court on ground that the contention as to whether by virtue of section 1(3) of the Industrial Relations Ordinance, 1969, the Petitioner Establishment was exempted from the application of the Industrial Relations Ordinance, 1969; required consideration. On 1-12-1988, on the application of the applicants, the learned Division Bench of the High Court of Sindh was pleased to grant the stay to the extent only that the Labour Court would not proceed with the aforesaid matter.
4. The Registrar of Trade Unions filed a complaint under section 23 of I.R.O., 1969, against certain officers of the applicant for violation of section 23 of I.R.O., 1969. The union also filed an application under section 34 of I.R.O., 1969 for enforcement of certain rights as prayed therein. In both the matters, the applicants raised the objection that as the question as to whether the I.R.O., 1969 was applicable or not to the establishment of the applicants; was pending before the Hon'ble High Court of Sindh and the proceedings in the Labour Court under section 32(1-A) have been stayed by the High Court, these 2 matters should also be stayed pending the decision by the High Court in Constitution Petition No,D1037 of 1988. The learned Labour Court did not agree with the contention of the applicants and dismissed their applications for the stay of the proceedings. The orders passed by the learned Labour Court are impugned by these 2 revision applications.
5. The question as to whether the I.R.O., 1969 was applicable or not to the establishment of the applicants was considered at length by this Tribunal in Appeal No,KAR-29 of 1986 and this Tribunal had held that the provisions of the Industrial Relations Ordinance, 1969, were applicable to the establishment of the applicants. This decision of the Tribunal had attained the finality and still holds the field unless it is set aside by the Hon'ble High Court in writ petition in the exercise of the writ jurisdiction.
6. Mr. Rafat Osmani, learned Advocate for the applicants contends that the learned Tribunal had not taken into consideration the Notification of the Government of Pakistan under which the establishment of the applicants had been exempted from the provisions of the Industrial Relations Ordinance, 1969; under subsection (3) of section 1 of the I.R.O., 1969. This Notification is No,F/SWA.6- 123/76-II; notified on 8-8-1987. Under this Notification, the Chief of the Air Staff applied to the Government of Pakistan, Ministry of Defence, for setting up a Charitable Trust to promote the welfare and benefit of the serving and retired Pakistan Air Force personnel including civilians. The Government of Pakistan accorded sanction to this proposal to set up a Charitable Trust under the name of Shaheen Foundation, Pakistan Air Force under subsection (1) of section 5 of the Charitable Endowments Act, 1890 (VI of 1890). It is contended that the applicant establishment is one of the Units of Shaheen Foundation its main function are to provide various services to foreign Civil Airlines at some Airports in Pakistan. Section 1(3)(a) of I.R.O., 1969, which has been relied upon by the applicants; reads as under:- "Section 1 -
(3) It shall not apply to any person employed ..
(a) in the Police or any of the Defence Services of Pakistan or any services or installations connected with or incidental to the Armed Forces of Pakistan including an Ordnance Factory maintained by the Federal Government;
7. The services or functions of the applicants cannot be said to be services or installations connected with or incidental to Armed Forces of Pakistan and, therefore, it cannot claim exemption under the said provision.
8. Until and unless the Hon'ble High Court decides otherwise this Tribunal's Decision would hold the field and would be operative as the operation of this part of the decision of the Tribunal has not been specifically suspended by the High Court in the said Constitution petition.
9. The General Secretary of the union has produced decision of this Tribunal in Appeals Nos.KAR-100 of 1985 and 117 of 1985; and Appeal No,KAR-171 of 1986, whereunder certain workmen of the applicants were granted reliefs under section 25-A, I.R.O., 1969; impliedly holding that the provisions of the Industrial Relations Ordinance, 1969 were applicable. In the Decision in Appeal No,KAR-171 of 1986, this question of application of Industrial Relations Ordinance, 1969, was also considered and it was held that I.R.O., 1969 was applicable. Mr. Rafat Osmani, the learned Advocate for the applicants was unable to make a statement as to whether these decisions of the Tribunal have been challenged in the Hon'ble High Court of Sindh on the ground that the I.R.O., 1969 was not applicable.
10. Coming to the facts of the case in the complaint under section 23 of I.R.O., 1969, filed by the Registrar, Trade Unions, it is admitted fact, that the applicants were deducting subscription from the salaries of the workmen at the request of the Union under section 23 of the I.R.O., 1969. They stopped this deduction after the orders of the learned Labour Court, who held that the I.R.O., 1969 was not applicable to the establishment of the applicants. However, they did not resume the deduction under section 23 even after the decision of this Tribunal holding that the provisions of I.R.O., 1969 were applicable. The contention of Mr. Rafat Osmani, the learned Advocate for the applicants, that because the question of applicability of I.R.O. Were pending before the High Court, therefore, the applicants were not bound to deduct the subscription under section 23, I.R.O., 1969, in my opinion, does not appear to have much force. The Registrar Trade Unions was not even a party before the High Court in the Constitution petition wherein this question is being considered by the High Court. The prayer of the applicants for the stay of the complaint proceedings was rightly rejected by the learned Labour Court.
11. For the same reasons, the proceedings under section 34 of I.R.O., 1969 filed by the respondent union cannot be stayed.
12. If the argument of Mr. Rafat Osmani, the learned Advocate is accepted that because of the pendency of the question of law before the Hon'ble High Court all the proceedings against the applicants under I.R.O., 1969 may either not be initiated or may be stayed would in fact defeat the ends of justice. It will leave the aggrieved workman with practically no remedy. The Appellate Tribunal under the I.R.O. Has given the decision that Industrial Relations Ordinance is applicable and this decision is final and operative unless and until it is set aside by the Hon'ble High Court. Mr. Rafat Osmani has also relied upon section 10, C.P.C. Section 10 C.P.C. Would not be applicable in the case of the complaint for violation of section 23, I.R.O., 1969 and would also not be applicable in the proceedings under section 34 of I.R.O., 1969, as the questions raised in both the proceedings are not the same. Mr. Rafat Osmani, the learned Advocate contends that the common question before the learned Labour Court would be as to whether the Industrial Relations Ordinance, 1969 is applicable or not. I am afraid I cannot agree with him because this Tribunal had already given a Ruling in this respect and the subordinate Courts are bound by this decision.
13. For the above reasons both these revision applications are dismissed; with this observation that the learned Labour Court would not be prejudiced by any opinion on merits, expressed by this Tribunal.