DECISION This is an appeal against the award of the learned Presiding Officer of Sind Labour Court No. III, Karachi, whereby the learned Labour Court ordered the re-instatement of 52 workers with full back benefits. The facts giving rise to the present appeal briefly put are these.
2. There was a strike, but later on the National Steel Employees* Union, (hereinafter called the respondent-Union), agreed to resume work. The workers reported for duty, but the Management refused to take back the 55 workmen, including Mr. Mateen Abmed, the General Secretary of the respondent-Union. The case of the Management was that three persons out of 55 workmen mentioned by the respondent-Union had settled their accounts and, therefore, the question of their re-instatement did not arise. Eighteen of the persons mentioned in the list of the respondent-Union were charge- sheeted for misconduct. They were found guilty and, therefore, were dismissed from service. The rest out of the 55 persons did not report for duty. The learned Labour Court, however, came to the finding: (1) That the enquiry was fair and legal in respect of 18 persons, but as no second show- cause notice was given before dismissal, the dismissal was bad in law. (2) That the 34 workmen had reported for duty but the respondent had refused to take them and, therefore, it was a case of lock-out.
3. Mr. Mahmood A. Ghani, the learned Representative for the appellant, has raised certain important questions for consideration in his Memo of appeal. I ordered notices to be issued to some of the representatives for the labour and the Management, who usually appear before me, to address me on the questions raised by Mr. Ghani. When the matter came up before me, I asked the learned representatives for the parties and those who appeared as amicus curiae to address me if the application filed by the General Secretary of the respondent-Union as Collective Bargaining Agent was maintainable. In this connection, two questions require consideration. In the first place, whether the respondent-Union can be said to be the Collective Bargaining Agent on 13th September 1972, when the application under section 34 of the Industrial Relations Ordinance, 1969 (hereinafter called the Ordinance), was made. In the second place, if the respondent-Union was the Collective Bargaining Agent on 13th September, 1972, it admittedly having lost its character as Collective Bargaining Agent on 14th September 1972, could it continue the proceedings as Collective Bargaining Agent.
4. I now propose to take up the first point for consideration. The finding of the leamed labour Court is as under: "It is quite true that since 14-9-1972 National Steel Workers* Union has been declared as Collective Bargaining Agent in place of the applicant, but in view of the fact that applicant was Collective Bargaining Agent till 13-9-1972 when present application was filed, it will have to be decided in the light of the rights, which existed on 13-9-1972. It would make no difference that subsequently applicant has ceased to remain Collective Bargaining Agent. Thus I find that applicant was competent to pursue the present application." The first question is if the respondent-Union was the Collective Bargaining Agent on 13th September 1972.
5. Section 34 of the Ordinance, as it stood on 13th September 1972, reads as under: "Any Collective Bargaining Agent or any employer or workman may apply to the Labour Court for the enforcement of any right guaranteed or secured to it or him by or under any law or any award or settlement."
6. It is clear from the above provision of law that if the application is not filed by an individual workman, it can only be filed by the Collective Bargaining Agent. Collective Bargaining Agent is defined under section 2 (v) of the Ordinance. It reads as under1 "Collective Bargaining Agent", in relation to an establishment or industry, means the Trade Union of workmen which, under section 22, is the agent of the workmen in the establishment or, as the case may be, industry, in the matter of collective bargaining."
7. It appears from the above definition that it is not every Trade Union of workmen that can have the status of Collective Bargaining Agent. It is important to note that it is only the Trade Union, which is under section 22 of the Ordinance an agent of the workmen, that can be said to be the Collective Bargaining Agent.
8. For the disposal of the question as to whether the respondent- Union was the Collective Bargaining Agent on 13th September 1972, only two of the subsections of section 22 of the Ordinance require consideration. They are subsection (1) and subsection (2) of section 22 of the Ordinance. Under subsection (1) of section 22 of the Ordinance: "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, be deemed to be Collective Bargaining Agent for such establishment or group."
9. Admittedly, on 13th September 1972, there were two Registered Trade Unions, the respondent-Union and the National Steel Workers* Union, (hereinafter called the Union). Mr. Mateen Ahmed, the General Secretary of the respondent Union in cross-examination stated as under: "The other Union i.e. National Steel Workers* Union has been declared as Collective Bargaining Agent on 14-9-1972. On the very day of Referendum i.e. 14-9-1972 our Union i.e. National Steel Employees* Union had informed the Registrar of the Onions, that we are not going to participate in the referendum.** 10. The position is that on 13th September 1972, there were two Registered Trade Unions. The respondent-Union cannot be held to be the Collective Bargaining Agent on 13-9-1972.
11. Subsection (2) of section 22 of the Ordinance reads: "Where there are more registered Trade Unions than one in an establishment or a group of establishments, the Registrar shall, upon an application made in this behalf by any such Trade Union which has as its members not less than one-third of the total number of workmen employed in such establishment or group of establishments or by the employer (or the Government) hold (within fifteen days from the making of the application) a secret ballot to determine as to which one of such Trade Unions shall be the Collective Bargaining Agent for the establishment or group: Provided.
12. It is significant to note from the provision of subsection (2) of section 22 of the Ordinance that when there are two Trade Unions and an application had been made by one of them for secret ballot, unless the Registrar has held the secret ballot for determination of the Collective Bargaining Agent, none of the two Unions can claim to be the Bargaining Agent. On 13th September 1972, therefore, when the respondent-Union made the application under section 34 of the Ordinance it did not possess the requisite qualification of the Collective Bargaining Agent and there being no evidence that it was recognized by the employer within the meaning of section 52 of the Ordinance, it could not make an application under section 34 of the Ordinance. The application of the respondent-Union should have been dismissed on that ground alone. While disposing of this question, I must say that this point was not raised by any of the learned Representatives, who appeared for the parties. I, however, could not ignore such important question, which clearly follows from the admitted facts on the record. The consideration of this point does not require any additional evidence. I may have ignored this point had not the question of retrenchment of as many as 52 persons was involved. If the order of the Court was to be carried out, 52 persons could be re-instated, only if those who have been taken in their place were retrenched. This involves a very serious question of industrial peace. Moreover, Mr. Mateen Ahmed or none of the other workmen seem to me to be interested in the relief sought for by the so-called Collective Bargaining Agent. None of the workmen except Mr. Mateen Ahmed filed their affidavit or appeared before the learned Labour Court. Mr. Mateen Ahmed, it appears to me, filed the application under section 34 of the Ordinance on behalf of 35 persons only to embarrass the Union, which he knew would be declared Collective Bargaining Agent on 14th September, 1972. If the workers were really interested in the outcome of the application they could have approached the Collective Bargaining Agent declared by the Registrar on 14th September 1972 to pursue the application.
13. The learned-Representative addressed me on the presumption that the respondent-Union was the Collective Bargaining Agent on 13th September 1972. Messrs Ali Amjad, A. Majeed and Wasi Ahmad contended that if the respondent- Union was the Collective Bargaining Agent on 13th September 1972, it could continue the application notwithstanding the fact that another Union was declared as the Collective Bargaining Agent on the very next date of the filing of the application. In this connection, Mr. Ali Amjad, relied on Order XXII, rule 10 of the Code of Civil Procedure and cited certain cases in support of his contention that the respondent-Union could continue the proceedings and the award made would be binding on the appellants. In the first place, it may be stated as held by a Division Bench of the High Court of Sind and Baluchistan in the case of Brooke Bond Pakistan Limited, decided on 10-10- 1972, that the Civil Procedure Code in its entirety does not apply to the proceedings before the Labour Court. In the second place, the scheme of the Ordinance, as contended by Messrs M. A.
Ghani, M. A. Khan, Jaffer Hussain, Shaukat A. Narji and Masood Mirza, is such that if the Collective Bargaining Agent lost its character on the next date of the filing of the application the award made on its application cannot be said to be a legal one. An award under section 39(l)(