DECISION ' By this Revision Application Suo Motu jurisdiction of this Tribunal under section 38(3-a) of the I.R.O., 1969 is invoked and it is prayed that R & P of Application No, 23 of 1990 be called and the legality, correctness and propriety of the order, dated 6-2-1990, passed by the learned Presiding Officer, IV Sindh Labour Court be examined.
2. I have heard Mr. A. Majeed, learned representative of the applicant and Mr. Suleman Habibullah, learned counsel for contesting respondent No,1 and Mr. Rahat Hussain, Assistant Director Labour for respondents Nos.2 and 3.
3. The admitted facts of the case appear to be that the applicant is a registered Trade Union for 17 establishments whereas Pakistan Warehouse Carriers Workers Union (hereinafter referred to as 'respondent') is C.BA. For 23 establishments. The applicant was granted C.BA. Certificate for six establishments by the Registrar, Trade Unions on the ground that the applicant was the only registered Trade Union for the six establishments. Admittedly the respondent is not the registered Trade Union for these six establishments, but according to them, they are working as C.B.A. Under section 52 of I.R.O., 1969, for these six establishments also. The respondent No,1 filed an application under section 34 of the I.R.O., 1969, before the learned Labour Court with the following prayer:- ' It is, therefore, prayed that this Hon'ble Court may be pleased to enforce the secured and guaranteed right to the applicant union under section 22 of Industrial Relations Ordinance, 1969 declaring the C.B.A.
' Certificate dated 14-1-1990 issued by Respondents Nos.1 and 3 in favour of respondent No,2 union as illegal, void ab initio, issued without lawful authority and in violation of section 22 of I.R.O., 1%9 and as null and void and would further be pleased to hold that the applicant union has a secured and guaranteed right under the law to enjoy the status of `Collective Bargaining Agent' till holding of referendum under section 22 of I.R.O., 1%9."
' During the proceedings before the learned Labour Court respondent No,1 filed application for grant of interim ing the C.BA. Certificate of the applicant till the decision of the Industrial Dispute. The learned Labour Court, vide impugned order, granted 'Interim Order' as prayed.
4. The contention of Mr. A. Majeed is that because the applicant was the only 'Trade Union' registered for the six establishments, therefore, under section 22(1) of I.R.O. They were entitled to be granted the `C.BA. Certificate'. Mr. Suleman Habibullah has contended that respondents are acting as C.BA. Under section 52 of I.R.O. For these establishments and secondly that because the applicants were registered trade union for group of 17 establishments, therefore, they could not pick and choose to be granted `C.BA. Certificate' for only six establishments.
5. The next contention of Mr. A. Majeed is, that the learned Labour Court could not have granted injunction, which is barred under section 56(1) of the Specific Relief Act. Mr. Suleman Habibullah submitted that this objection was not raised before the learned Labour Court but conceded that this being legal objection, it could be raised before the Tribunal. However, he further submitted that there was no bar on the learned Labour Court under section 56(d) of Specific Relief Act.
6. It may be pointed that there is long history of litigation between the parties. It appears, that the registration of Trade Union of the Applicant was challenged by the respondent in the Hon'ble High Court of Sindh, Karachi in Constitution Petition No, S-85 of 1988, which was decided on 22-1-1989 and is reported in 1989 MLD 584. The registration as Trade Union of the applicant was cancelled by the learned Single Judge of the High Court and the case was remanded back to the Registrar, Trade Unions for disposal according to Law. It appears that in pursuance of this order, the Registrar Trade Unions, after completing the necessary proceedings, again issued registration certificate in favour of the applicant and subsequently issued C.BA. Certificate which is the bone of the contention in the present litigation. Admittedly the respondent No,1 has filed another Constitution Petition No,S-47 of 1989 against the registration of applicants as the Trade Union which is still pending. It is further submitted by Mr. Suleman Habibullah that he has filed objection in the same petition with regard to the issuance of the C.BA. Certificate by the Registrar, Trade Unions. Thus, the matter which is subject-matter of the dispute before the learned Labour Court is also pending before the High Court.
7. In the revision application it would not be improper for this Tribunal to go deep into the facts and merits of the case, as it would likely prejudice the case of one or other party before the learned Labour Court. However, in view of the facts as stated above, the legality, correctness and propriety of the impugned order has to be considered.
8. Mr.A.Majeed has relied upon the decision of the learned Single Judge of the High Court of Sindh, reported in PLD 1978 Kar. 612 wherein it was held that scrutiny of applications for registration of Trade Union and grant of registration are clearly public duties of the Registrar and mandatory injunction cannot be issued to the Registrar to stop him from granting such registration as such injunction was barred under section 50(d) of the Specific Relief Act. He has also relied upon the decision of this Tribunal in Applications Nos. HYD-417 and 418 of 1988 in the case of Zeal Pak Cement Factory Employees Union v. Zeal Pak Cement Factory Limited, decided on 20-2-1989. In that case the C.BA. Had served a notice of strike upon the employer and the conciliation proceedings had commenced. A petition was filed before the Labour Court and the learned Labour Court ordered the stay of the conciliation proceedings. Number of case-law was discussed in that case by this Tribunal including a Division Bench decision of the Karachi High Court in the case of Brooke Bond (Pakistan) Limited Second Sindh Labour Court, Karachi reported in 1973 PLC 111. The Division Bench consisted of late Chief Justice Tufail Ali A. Rehman and Mr. Justice Fakhruddin G. Ebrahim the then Judge of Sindh High Court, who held:- "Subsection (2) of section 36 does not confer on Labour Court while adjudicating and determining an industrial dispute, all the powers of a Civil Court under the Civil Procedure Code but only such of them as may be described as procedural i,e, such as required for the purpose of adjudication and determination. It is clearly not necessary in order to be able to adjudicate or determine a dispute that pending the adjudication or determination, a party be restrained from giving effect to order passed by it whereby the services of its employee had been terminated."
9. In 1984 PLC at pages 1393, and 115 it has been observed that in any dispute pending before the Labour Court, N.I.R.C. Or the Labour Appellate Tribunal these Courts could grant interim relief which is ancillary or incidental to the main question under dispute. This Tribunal however in view of the facts and legal position of case of Zeal Pak Cement vacated the stay order. Mr.Suleman Habibullah has relied upon the case of Karachi Warehouse and Carriers Workers Union v. Pakistan Warehouse Carriers Workers Union and 3 others reported in 1978 PLC 554, wherein the learned Single Judge of Karachi High Court had repelled the plea, that President and Vice-President were not competent to institute proceedings on behalf of Trade Union in terms of Order XXIX, Rule 1 of the Code of Civil Procedure. This view was taken by his Lordship in respect of an application under Order XXIX, Rule 1, C.C.P. Moved in the Constitution petition and not before the Labour Court. Mr. Suleman Habibullah has also relied upon 1983 PLC 119 wherein a learned Single Judge of the Karachi High Court had held that provisions of sections 21 and 22 of the C.P.C. Were applicable in proceedings before the Labour Court.
10. Mr.Suleman Habibullah contended that industrial dispute has been raised with regard to rights of respondent under section 22(1) and (2) of I.R.O. There is nothing prima facie on the record to show that the Respondent No,1 is registered Trade Union of the six establishments for whom C.B.A.
Certificate has been granted to the applicants. The respondent's contention that because the applicant is Trade Union of group of establishments, therefore, he could not be C.B.A. For only six establishments cannot be considered prima facie as a right secured to respondent. He also contended that there was agreement with the employers of these establishments that no contractor would be registered without concurrence of the respondent. Such an agreement cannot be considered as the secured right. Furthermore, such agreements have yet to be proved when evidence is recorded. If the contention of the respondent is accepted that because the applicant is Trade Union of group of 17 establishments it could not be appointed as C.B.A. For six establishments only it would mean that the employees of those six establishments would have no venue for redressing their collective grievances. There is no specific bar on grant of such C.BA. Certificate under subsection (1) of section 22 of I.R.O., 1969, which provides:-- "22. Collective bargaining agent.--(1) Where there is only one registered Trade Union in an establishment or a group of establishments, that Trade Union shall, if it has as its members not less than one-third of the total number of workmen employed in such establishment or group of establishments upon an application made in this behalf be certified by the Registrar in the prescribed manner to be collective bargaining agent for such establishment or group."
' It may be pointed out that six establishments can also be considered as 'group of establishments'.
Section 52 of the I.R.O., 1969, may also be reproduced as under:- "52. Performance of functions till collective bargaining agent ascertained.-- Any act or function which is by this Ordinance required to be performed by or has been conferred upon a collective bargaining agent may, until a collective bargaining agent has been certified under the provisions of this Ordinance be performed by a registered Trade Union which has been recognised by the employer or employers."
11. The question that requires consideration is whether the Trade Union referred to in this section is Trade Union of that particular establishment or any Trade Union. Prima facie it would be the registered Trade Union of that establishment. However, all these questions can be decided only after recording of the evidence. Admittedly there is no specific provision of law under which the learned Labour Court has power to cancel the C.B.A. Certificate. Mr. Suleman Habibullah contends that it could be cancelled under section 34 of I.R.O., but he has not been able to produce any case- law. The fact that even before raising the Industrial Dispute before the learned Labour Court, the respondent No,1 had gone to the High Court for cancellation of the Registration Certificate would show that the respondent was conscious of the fact that Labour Court had no power to cancel the Certificate except on the application of the Registrar under section 10. Even under section 10 `C.BA.
Certificate' cannot be cancelled unless the registration is cancelled.
12. In view of the above discussions on facts and law and under the circumstances of the case the grant of interim stay by the learned Labour Court was neither legal nor proper, and therefore, the stay is vacated.
Stay order vacated.