ORDER These are the two applications made by the applicant Karachi Hosiery Mills Workers' Union against the respondent under section 34 of I. R. O., 1969 and under section 45 of I. R. O., 1969 seeking the enforcement of the rights guaranteed and secured to them under the law in respect of prohibiting the respondeat from the continuance of lock-out which was against the mandatory provision of law. So far as the application under section 45 of I. R. O., 1969 is concerned it was heard and decided by Mr. Abdul Hamid Baloch, the Presiding Officer, Sind Labour Court No. 4, in favour of applicant but the respondeat filed Constitutional Petition in the Honourable High Court. The order was set aside and it was ordered that the fate of application be decided on merits after allowing both the parties to adduce their evidence. Thus by this order the fate of both the applications would be decided. The case of the applicant succinctly put is that the applicant-Union was the General Union of Karachi Hosiery Mills Workers' Union and as such was also considered as Collective Bargaining Agent of the respondent's factory. That the applicant-Union had raised an lnduttrial Dispute under section 26(1) of the Industrial Relations Ordinance, 1969, which resulted in the Settlement between the parties on 19-1-1973 vide Exh. 34 but according to the applicant the respondent did not implement the terms of Settlement in respect of issuing of Attendance Card and Service Cards to the applicant. The applicant further contended that the respondent victimized two active members of the Union on 15-2-1973 and 17-2-1973 respectively by terminating their services without any reason and finally on 28-2-1973 the respondent terminated the services of 24 workers on the plea of slumpness of the market. Thus the applicant claimed their entry into the service to be the right guaranteed and secured under the law. Hence the instant applications.
The applications were opposed by the respondent both on legal plank as well as factual aspect of the case. The legal points raised on behalf of the respondent are as under : (1) That the applications were not maintainable in law. (2) That the applicants-Union was not registered Trade Union/Collective Bargaining Agent in respect of respondents* factory hence had no locus standi to raise industrial dispute or to institute any proceeding against the respondent's factory. (3) That no right was secured or guaranteed to the applicant under any law/award or settlement. (4) That all the workers excepting one have collected their dues from the respondent in full and final settlement, hence the applications were incompetent and infructuous. The objections on factual aspect are as under : -- (l) That no notice under section 26(1) of Industrial Relations Ordinance, 1969 was ever served by the applicant to the respondent. The respondents have categorically denied to have victimized the two workers on 15-2-1973 and 17-2-1973 respectively. Similarly the respondents have denied the allegation of illegal lock-out of 24 workers. According to them there were only I6 workers working in their factory and the Factory was sustaining losses due to which its partner decided to close down stitching department w.e.f. 28-2-1973 due to which all the l2 workers of the stitching department were informed vide letter dated 26-2-1973 by way of placing the notice on the Notice Board of the Factory, and also by registered post due to which all the retrenched workers collected their legal dues in full and final settlement and executed receipts thereof. I have heard the arguments of learned Advocate/Representative of the parties and also gone through the written arguments advanced on behalf of the parties and also applied my mind to the evidence adduced by both the parties. At the very outset I would like to deal with legal objections raised on behalf of the respondents before thrashing out the factual aspect of the case. The first legal objection that merits consideration would be whether the applicant Fakhruddia has got the locus standi to file these applications. Admittedly the applicant Fakhruddin who claims to be the General Secretary of Karachi Hosiery Mills Workers' Union is not the employee of the respondent's factory but it is correct to say that according to section 22(1) of I. R. O. 1969, where there is only one registered Trade Union in an establishment or a group of establishments, that Trade Union shall, if it has its members not less than one-third of the total number of workmen employed in such establishment, or group of establishments shall be deemed to be Collective Bargaining Agent for such establishment or establishments or group. So then as per section 22(1) of I. R. O., 1969, the applicant-Union being the Collective Bargaining Agent of General Union of Karachi Hosiery Mills Workers' Union could raise industrial dispute under section 26(1) of I. R. O., 1969 and thereby file the instant applications provided that General Union of Karachi Hosiery Mills Workers Union had got its members not less than l/3rd of the total number of workmen employed in the establishment of the respondent. Whereas it is evident from the record that the applicant-Union had no l/3rd number of the total number of workmen employed in the establishment of the respondent, failing which the applicant who claims to be the General Secretary of the General Union of Karachi Hosiery Mills Workers' Union would have no locus standi to file the instant application, especially when he is an outsider. Secondly the respondents have all along been challenging the character of applicant- Union to be the Collective Bargaining Agent therefore under these circumstances it was incumbent on the applicant to have proved through documentary evidence by way of such declaration certificate of C. B. A from the Registrar but I find such evidence having not been brought on record by the applicant. In this connection it would be profitable to lend support from the following decisions : In Hotel Columbus Ltd.y Karachi v. Karachi Hotel Workers* Union 1974 PLC 441, it was held that in case there is no declaration by the Registrar given in favour of respondent No. 1, the objection was rightly held by the petitioner that the respondent-Union had no locus standi either to give notice of demand or invoke section 26 of I. R. O., 1969. (2) In 1975 PLC 427 ...................... Held that every registered Trade Union is Collective Bargaining Agent and a Collective Bargaining Agent losing the character of C. B. A. cannot continue the proceedings in the Labour Court, (3) Union v. U.
B. L. PLJ 1973 Tr. C. 274, held that application under section 34 of I. R. O., 1969 filed before the Labour Court by registered Trade Union but not Collective Bargaining Agent was not maintainable.
Similarly my attention has been drawn by the learned Representative of the respondent to several other rulings including a decision appearing in Huma Hosiery v. Hosiery Workers* Union (1) in which it was held that Union having 21 office-bearers out of which only one office-bearer belonged to factory did not fulfil condition for registration as laid down in section 7(d) before its amendment on 17-10-1970--registration of such Union is not valid and legal. Faced with the above legal defect I come to an irresistible conclusion that the applicant could not espouse the cause of workers working in the respondent factory, therefore the application in the present form is not maintainable. Apart from this legal defect there are other material contradictions and discrepancies in the evidence of applicant which render his case unbelievable in the extreme. In the application itself number of lock-out workers has been given by the applicant as 24 whereas the number of locked-out workers as given in his affidavit for the purpose of evidence at Exh. 24 is
18. This contradiction rather clearly shows that applicant who is admittedly the stranger was not seized of atcual position of the respondent factory and had nothing to do with the workers of the respondent factory. The affidavit filed by the applicant dated 30-11-1973 Exh. 45 in the Fifth Sind Labour Court shows that he claimed to be the General Secretary of the Union from 29-4-1973 which fact was duly confirmed by the said Court whereas the instant applications have been filed on 5- 3-1973 prior to his being appointed as General Secretary therefore on this ground also the applications would fail. The other legal point worth consideration is whether the Settlement/ Agreement Exh. 34 was genuine and merits considerations. In this connection it is relevant to go through the evidence of Mr. M. R. K. Ghory the Deputy Director and Conciliator Exh. 49 who has clearly stated that the settlement Exh. 34 was not reached during the course of conciliation proceedings and according to him the copies of the settlement were not sent to any other Government Officials. He further goes (1) 1974 PLC Note 134 at p. 73 on to admit that the agreement was not on the prescribed form, therefore, these defects render the agreement/settlement Exh. 34 as null and void and in contravention of the provision of section 2(xxiv) I. R. O., 1969 according to which 'settlement' means a settlement arrived at in the course of conciliation proceedings, and includes an agreement between an employer and his workmen arrived at otherwise than in the course of conciliation proceedings where such agreement is in writing has been signed by the parties thereto in such manner as may be prescribed and a copy thereof has been sent to 1he Provincial Government, the conciliator and such other person as may be prescribed. So then admittedly there is no iota of evidence available on record to show if any such copy/copies were sent to Provincial Govemment and anyi other such department therefore in the eye of law this agreement has got no evidentiary value and therefore the respondent would not be liable to act upon! it implicitly. Yet there are other glaring circumstances which render this settlement/ agreement void ab initio. As already stated by me above from the documentary evidence of the applicant itself it is clear that he was elected as General Secretary on 29-4-1973 whereas the alleged settlement/agreement Exh. 34 was claimed to have come into existence on 28-12-1972 and the same was signed by the General Secretaiy on 19-1-1973. This fact clearly shows that at the time of execution of settlement/agreement the applicant Fakhruddin was not the General Secretary of the Union because admittedly he became the General Secretary on 29-4-1973, about four months after the execution of settlement/agreement Exh.
34. Therefore he not being the General Secretary at the time of execution of agreement/settlement had no locus standi to sign the settlement when he was not the General Secretary. Secondly according to Mr. Ghoury the Deputy Director and'Conciliator from his record showed that the alleged settlement was filed on 29-12-1972 although according to him the agreement showed that General Secretary had signed it on 19-1- 1973. Since the General Secretary had signed it on 19- 1-1973 the agreement should have been sent to the Deputy Director after the agreement/settlement was signed by the General Secretary and therefore in all fairness it should reach the Deputy Director after 19-1-1973 but it shows that the same was reached on 29-12-1972. This material discrepancy also renders the agreement/settlement to be not the proper document in the eye of law and also reflects upon the bona fides and correctness of the document itself. From the above material discrepancies it is further clear that the Labour Directorate for the first time came to know about this settlement/ agreement on 29-12-1972 therefore to say that further meetings were held between the parties on 25-1-1973 onwards would become absurd when the parties had already come to settlement as communicated to Labour Directorate on 29-12-1972. All these circumstances taken into consideration go to show that the settlement/agreement Exh. 34 which is made the basis of the instant cases was not legally valid document and it was a manipulated affair so as to create evidence against the respondent. The last very pertinent legal point involved in the instant cases would be whether the case comes within the purview of section 34 of the Industrial Relations Ordinance, 1969. Pakistan Labour Cases 1975The provisions of section 34 could only be invoked when there are pre-existing rights which could be enforced but in case any such righs which are yet to be determined then in that the application under section 34 would not lie. Reliance is placed on the ruling reported in PLJ 1974 Kar. 252. Relying on this decision it is clear that even according to applicant in his application the services of the workers were terminated on the ground that there was slumpness in the market therefore it was yet to be determined whether or not the impugned action of the respondent in terminating the services of the workers was bona fide or mala fide and by arriving to a definite conclusion it would be necessary to examine the balance-sheet of the respondent factory whether the respondent was actually going in huge losses as claimed by them and whether they were justified in closing their Stitching Department and thereby terminating the service of the workers. Thus obviously under no stretch of imagination or cannon of law it can even be remotely said if the applicant had their right guaranteed andi secured to them under the law but rather it is apparent and patent that J? this fact was yet to be determined by the Court by enabling the parties to] adduce their evidence before coming to the final conclusion. Thus for these reasons it is my considered and well-thought view that the application under section 34 would not lie. Lastly it is clear from the record that the respondent had issued notices of termination of services of l2 workers as they had closed their stitching department and allowed to continue their knitting department and it is also clear from the record that excepting one the rest of the workers had accepted their dues towards full and final settlement vide their vouchers available on the record and the signature on the vouchers were not denied by them although alleged to have been taken on blank papers but the record shows that they were not obtained on blank papers but on cyclostyled papers. So this plea of workers could not be allowed to say that their signature were obtained on blank papers. Similarly it is not logical that after the services of workers were terminated the respondent the workers would be good enough to accommodate the respondent to sign the blank papers especially when they were very much aggrieved by the impugned action of the respondent in terminating their services. Therefore from whichever way the case is looked at the decision must go against the applicant. According to respondents they had terminated the services of all workers working in stitching department by adopting the principle of Mast in first out' as against that there is no allegation from the applicant that principle of Mast in first out' was not adopted by the respondent. In Appeal No. 397/73 by S. L. A. T. in the matter of Kohitioor Battery v. Muhammad Iqbal Bonus it was held that respondent Muhammad Iqbal after having nexus of master and servant and hence the application filed by him before the Labour Court was not competent. Lastly so far as the closing of stitching departmeut is concerned it is to be seen whether it comes within the purview of illegal lock-out or an action taken by the respondent within the four corners of law. In this connection it would be profitable to go through the decision appearing ln 1969 PLC 459 in which it is held that the right of management to retrench and reorganize its department would not bel limited by Industrial Court. For, every employer has an absolute right tor re-organize its department and to do away with the services of workers who| may have become surplus. Therefore even looking to the factual aspect of the case it is manifestly clear and patent that the applications are not maintainable, in law. In the result both the applications stand dismissed. The End \ / {7511BCD8-D1B7-4CE8-89F1-8CFB2236E349} VOLUME XVl PAKISTAN LABOUR CASES ' CIVIL SERVICES APPELLATE TRIBUNALS