DECISION ' This is an appeal against the order of learned Presiding Officer, Sindh Labour Court No,III at Karachi, dated 10-12-1988, whereby he dismissed the grievance petition, jointly filed by several workmen through their Collective Bargaining Agent.
2. I have heard Mr Ali Amjad, learned Advocate for the appellants and Syed Zamirul Hassan, learned Representative for the respondents and have also gone through the record and proceedings of the case.
3. The admitted facts of the case are that the respondent had moved an application under Standing Order 11-A of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968; for permission of the Labour Court to close down their Mill. This petition was contested by the Collective Bargaining Agent, but, it was allowed by the learned Labour Court.
Against that order, the Collective Bargaining Agent filed Constitution Petition No,S-138 of 1986 which was dismissed by learned Single Judge of Sindh High Court at Karachi on 22-3-1988 which is reported in 1988 PLC 564. After obtaining the permission from the Labour Court under Standing Order 11-A, the respondents served letters of termination of services upon all the workers, vide letters, dated 19-7-1986 terminating the services of about 300 workers from the date of service of letter of termination. The respondents also allowed the workers one month's pay in lieu of notice and other legal dues. Aggrieved by this order of termination, about 218 workers served grievance notice upon the respondents through their Collective Bargaining Agent and thereafter filed joint grievance petition before the learned Labour Court which was duly contested by the respondents on various grounds.
4. The appellants filed affidavit-in-evidence of the General Secretary of the C.BA. Namely, Barkhurdar who was also a workman and whose services were terminated and also the affidavits- in-evidence of a number of other applicants/workmen. It appears that after Barkhurdar was cross examined, the respondents moved an application for the dismissal of the grievance petition on the ground that it was not maintainable. The learned Labour Court without taking further proceedings, after hearing the counsel of the parties dismissed the petition holding that it was not maintainable.
5. The learned Labour Court came to the conclusion that grievance petition was not maintainable on the basis of observations made by the learned Single Judge of High Court in the aforementioned Constitution petition, reported in 1988 PLC 564, wherein it was observed, as under:- "I am also inclined to hold that a C.BA. Who is a party to the proceedings under Standing Orders Ordinance 11-A before a Labour Court cannot impugn the order passed therein through an application under section 25-A of the I.R.O. Before the Court."
6. It appears that the learned Presiding Officer had not properly appreciated the observations of the learned Single Judge in the afore-mentioned case. The learned Single Judge has referred to an earlier Decision of another learned Single Judge of the High Court of Sindh at Karachi in the case of Nazeer Ahmad and another v. Presiding Officer and 5 others, reported in 1986 PLC 1052 in which the learned Single Judge had held that the petitioners, who in the capacity of individual workers, filed their application for being impleaded as intervenors in proceedings under Standing Order 11-A of the Ordinance, had no vested right to become a party and appropriate remedy for them was in the form of an application under section 25-A of the I.R.O. The learned Single Judge in the case reported in 1988 PLC 564 did not disagree with the earlier decision of the High Court, but, was of the opinion that the instant case was distinguishable from the case, as the C.BA. Who had contested the application under Standing Order 11-A could not impugn the order passed under Standing Order 11-A through application under section 25-A, I.R.O., 1969. His Lordship further went on to observe, as under:- "I have deliberately refrained myself from expressing on the question, whether the workers can file application under section 25-A of the I.R.O. Against the termination of their services, as the above point is not involved in the present case and secondly, I would not like to pre-empt the decision of the Labour Court as admittedly some of the workers had filed applications under the above provisions of the I.R.O., as per statement of the learned counsel for respondent No,2.
7. It appears that the learned Labour Court has considered the grievance petition to have been filed by the C.BA. In fact C.BA. Had no right to file a grievance petition under section 25-A which relates to individual grievance of a workman. However, under subsection 10 of the said section, workers having common grievance arising out of common cause of action may make a joint application to the Labour Court. Under subsection 4, the worker has right either to take grievance to the Labour Court himself or through his C.BA. It appears that the workers in the instant case, had taken their grievance jointly to the Labour Court in a single grievance petition through their Collective Bargaining Agent. This grievance petition under section 25-A, therefore, could not be said to have been filed by the C.BA. Which can only file applications for settlement of industrial disputes under sections 34, 34-A or 32(1-A) of I.R.O., 1969.
8. Individual workers cannot be debarred from filing petitions under section 25-A only because their C.BA. Had contested the application of the management under Standing Order 11-A.
According to the aforesaid earlier decision of the High Court individual worker has got a right to agitate matters before the Labour Court even after the permission is granted by the learned Labour Court. The aforesaid latter decision of the High Court does not defer with the earlier decision which still holds the field. I am, therefore, in respectful agreement with the decision of the High Court with regard to the right of the worker to take his grievance to the Labour Court under section 25-A, I.R.O., 1969, which right is guaranteed to him under the Law. However, in the instant case, the order of closure of the factory is not challenged. The grievance alleged in the grievance petition is that in spite of the permission to close the factory, the respondents had not closed the factory and are continuing to get work done in the factory through other labourers. It is a question of fact and cannot be decided as a legal issue. I have already pointed that only one workman Barkhurdar has been cross examined. His admissions, if any, would not bind other workmen who have also filed affidavits-in-evidence averring therein on oath that the factory was still working. It will be only fit and proper that the Labour Court should decide the question of fact after giving opportunity to both the parties to cross-examine each other's witnesses and to produce evidence, if any. I accordingly set aside the impugned order and remand the case back to the Labour Court for decision in accordance with Law.