DECISION This is an appeal under section 37(3) of the Industrial Relations Ordinance filed by the Union against an award dated 22-5-74.
2. The Union of the employees of the respondent served a Charter of 24 demands. Subsequently Strike Notice was given. On failure of the conciliation proceedings an application was made to the Labour Court for determinition and adjudication of the demands. The claim was resisted and it was inter alia pleaded that the industrial dispute could not be raised and was not maintainable in view of the'settlement dated 26-8-1970 signed by the parties and was binding for a period of two years. On merits also the demands were contested. 3.
The Labour Court on the basis of the material produced in the case accepted some of the demands and rejected other demands specially the demands involving financial implications as according to the Labour Court it was agreed between the parties that no demand for a period of two years shall be raised. This finding was based on the admission made by the General Secretary of the Union when he was examined. Aggrieved by this present appeal has been filed which is mainly directed against Demands Nos. 5 to 10, l2 to I6, 18 to 20, 23 and 24.
4. On perusal of the record and proceeding and hearing the arguments I am of the view that the learned Labour Court erred in accepting the admission of the General Secretary that the Union was estopped from raising any demand involving financial implications by virtue of the settlement dated 26-8-1970. ln my view the General Secretary made an obliging state-i meDt on account of some extraneous consideration and it could not form theU basis of the finding of the Labhur Court. There is nothing in the settlement! to show that any such restriction was imposed or agreed upon. In case any such bar was intended to oprerate there is no reason why it should not have been included in the settlement itself and why it should have been left on the oral testimony of the Management and the General Secretary. In fact at the time of the settlement there was no demand involving financial implications. All the demands pertain to the re-instatement of the workers and the grant of annual leave as is clear from the very settlement. Consequently the necessity for imposing a bar against raising financial demeands did not arise and it is on tint account that no such clause was embodied in the settlement. It may be noted that the settlement which has been reached is required to be signed by both the parties. Admittedly the settlement dated 26-8-1970 bears the signatures of the employe', s as well ^s the President, General Secretary, Joint Secretary and Finance Secretary of the employees Union. It is also signed by the Assistant Director Labour. In my view any term which has not been included in the settlement so signed cannot be considered to have been argeed upon. Not only this but even in the written statement which covers about seven pages not a single word had been said that there was any agreement that the employees would not raise any demand involving financial implications. What was stated that a settlement dated 26-8-1970 was signed between the parties and the same was binding upon them for a period of two years, and therefore the demand notice and strike notice were contrary to the settlement and as such legally not maintainable. This could not be the reply to the demands made by the employees, if there was any agreement that the demands involving financial implications would not be riased for a period of two years.
5. I am constrained to say that the learned Labour Court without considering the material which has been outlined simply based his decision on the admission made by the General Secretary. I repeat the admission of the General Secretary ought to have been rejected.
6. In the result I allow the appeal and set aside the award with regard to the aforesaid demands involving financial implications and remand the case to the Labour Court for decision on merits after allowing the parties to lead further evidence, if desired by them. 1975* PLC 764 [Labour Appellate Tribunal Punjab] Present : M. Jamil Asghar, Appellate Tribunal EMPLOYEES* UNION versus Messrs AMEERSONS OPTICAL INDUSTRIES , decided on 20th September 1975. (?)
Industrial Relations Ordinance (XXIlI of 1969)-- ----- S. 32 and S. 22(1) [as amended vide Industrial Relations (Amendment) Ordinance (XIX of 1974) ]--Collective bargaining agent--Status of-- Amendment not retrospective--Cause of action arising prior to amendment and industrial dispute also raised prior thereto-- Status of Union to act as collective bargaining agent, in circumstances, held, determinable by S. 22(1) as it stood prior to amendment--Union though not certified by Registrar as collective bargaining agent being only registered union, heldt deemed to be collective bargaining agent, hence competent to raise industrial dispute, [p. 766J/4 (?) Industrial Relations Ordinance (XXIlI of 1969)-- ---- Ss. 32(1-A) & 25-A read with West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S. O. 12(3)--Termination of service of workmen--Remedy--Specific remedy provided by way of application under S. 25-A-- Matter, held, cannot be raised as industrial dispute under S. 32(1-A). Services of workers had been terminated by the employer due to nonavailability of raw material. Employees' Union raised an industrial dispute challenging the action of emplo>er and demanding re-instatement of the workers by way of an application under section 32 (1-A), Industrial Relations Ordinance. It was contended on behalf of the union that dismissal, discharge, retrenchment, lay-oflf, removal of a worker can be made the subject-matter of an industrial dispute in view of the definition of "industrial dispute" and "worker" in section 2 (xiil) and 2 (xxviii) of the Ordinance. Held: "Standing Order No. 12(3) of the West Pakistan Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968 as amended by the West Pakistan Industrial and Commercial Employment (Standing Orders) (Amendment) Ordinance, 1972 provides a specific remedy to* the aggrieved worker as it lays down that workers whose services had been terminated could only proceed under section 25-A of the Industrial Relations Ordinance, 1969 if they are aggrieved by the order of termination of their services. Their re-instatement cannot be the subject-matter of an industrial dispute." [pp. 767, 768] & C Pakistan Tobacco Company Limited v. Pakistan Tobacco Company Employees* Union, Dacca and 2 others 1961 PLC 1033 and Messrs The Attock Oil Co. Ltd. v. The Supreme Body of Oilfields League and Refinery Union, Rawalpindi 1969 PLC 869 held not applicable. Naeem Sultan Butt, for Appellant. Almas Ali for Respondent. Date of hearing : 8th September 1975. Judgment This is an appeal against the award dated 12-6-1975 of Punjab Labour Court No. 1, Lahore dismissing the petition filed under section 32(1-A) of the Industrial Relations Ordinance, 1969.
2. Sh. Aziz-ud-Din, the proprietor of Ameersons Optical Industries, Lahore, respondent, on 29-8-1973 served a notice (Exh. PW 2/l) on 10 workers namely, Muhammad Azam, Qadir Bakhsh, Haji Feroz Din, Salim Sabir, Rafi Ullah, Muhammad Ismail, Shabir Ahmad, Taj Din and Altaf Ali. The notice is to the following effect : "The raw material for making frames for spectacles is finished. The order for the import of raw material has not been executed. There is no likelihood of receipt of raw material during the next few months. The raw material in fact has not been shipped.
Therefore,'in the normal course it will take about 4 months for the raw material to reach here. In view of the above the Management is constrained to close down the frame manufacturing section with immediate effect At first the Management considered to lay-off the workers but as raw material is not likely to be received within 14 days, such a lay-off is not possible. For this reason the Management was sorry to terminate the services of 10 workers and gave them one month's notice pay and informed them that they should collect their wages along with notice pay in the afternoon of 31-8-1973".
3. Ameersons Optical Industries Employees Union, appellant served demand notice (Exh. PW 2/2) on the proprietor of Ameersons Optical Industries, demanding the re-instatement of the workers concerned with back benefits with immediate effect On 11-9-1973 the appellant-Union served strike notice (Exh. PW 2/3) on the respondent Conciliation proceedings failed and the Deputy Director, Labour Welfare (Conciliation) issued Failure Certificate) (Exh. PW 2/2) on 26-9- 1973. On 28-9-1973 the appellant-Union raised the under consideration industrial dispute against the respondent by way of a petition under section 32(1-A) of the Industrial Relations Ordinance, 1969. The learned Labour Court rejected that petit'on vide award dated 12-6-1975.
4. Aggrieved by the above award the appellant-Union has preferred this appeal.
3. The respondent not only contested the appeal on merits but also raised the following preliminary objections : (1) That the appellant-Union had not been certified as Collective Bargaining Agent by the Registrar of the Trade Unions and, therefore, industrial dispute raised by it did not deem to exist in view of the provision of section 43 of the Industrial Relations Ordinance, 1969. (2) That the services of the 10 workers had been terminated under Standing Order l2 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. The appellant Union instead of proceeding under section 25-A f^r the redress of their grievance raised an industrial dispute demanding the reinstatement of the 10 workers. It was contended that since specific remedy was available, this demand cannot be the subject-matter of an industrial dispute.
6. Preliminary objection No. 1.--The learned counsel for the appellant conceded that the Registrar of the Trade Unions had not certified the appellant- Union as Collective Bargaining Agent, but nevertheless the said Union being the only registered Union in that establishment, was deemed to be a Collective Bargaining Agent. In this connection he referred to section 22(1) of the Industrial Relations Ordinance, 1969, which reads as follows : "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 l/3rd of the total number of workmen employed in such establishment or group of establishments, be deemed to be the Collective Bargaining Agent for such establishment or group." Section 22(1) was amended by Ordinance XIX of 1974 which came into force on 10-10-1974. The said section now reads as follows : "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 l/3rd 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."
7. In the instant case the demand notice was served by the appellant- Union on 30-8-1973. On 11-9-1973 strike notice was served on the respondent and the Failure Certificate was issued on 26-9-1973. Petition under section 32(1-A) of the Industrial Relations Ordinance, 1969 was filed on 28-9-1973. The above facts show that the industial dispute was raised by the appellant- Union before the amendment 6f section 22(1) of the Industrial Relations Ordinance, 1969. Under these circumstances the appellant-Union being the only registered Trade Union would be deemed to be a Collective Bargaining Agent. The preliminary objection No. 1 is accordingly overruled.
8. Preliminary object No. 2.--It was contended by the learned counsel for the respondent that the demand for re-instatement of 10 workers whose services had been terminated under Standing Order l2 cannot be made the subject-matter of an industrial dispute because a specific remedy under section 25-A of the Industrial Relations Ordinance, 1969 was available to them. In this connection he referred to Standing Order 12(3) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, which reads as follows : "The services of a workman shall not be terminated nor shall a workman be removed, retrenched, discharged, or dismissed from service, except by an order in writing which shall explicitly state the reason for the action taken. In case a workman is aggrieved by the termination of his services or removal, retrenchment, discharge or dismissal, he may take action in accordance with the provisions of section 25-A of the Industrial Relations Ordinance, 1969 (XXIlI of 1969), and thereupon the provisions of the said section shall apply as they apply to redress of an individual grievance."
9. The above amendment came into force on 15-11-1972 by the West Pakistan Industrial and Commercial Employment (Standing Orders) (Amendment) Ordinance, 1972. According to the above amendment a specific remedy -1975 767is available to the aggrieved workers and, therefore, their re-instatement cannotl be the subject-matter of an industrial dispute. f 10. The learned counsel for the appellant, on tbe other haad, contended that dismissal, discharge, retrenchment, lay-off, removal of a worker can be the subject-matter of an industrial dispute. In this connection he referred to the definition of "industrial dispute" and ''worker" as given in section 2(xiii) and 2(xxviii) of the Industrial Relations Ordinance, 1969, respectively. Section 2(xiii) reads as follows:-- "Industrial Dispute" means any dispute or difference between employers and employers or between employers and workmen or between w orkmen and workmen, which is concerned with the employment or nonemployment or the terms of employment or the conditions of work of any person.'* Section 2(xxviii) reads as follows:-- " 'Worker* and 'workman' means any person not falling within the definition of employer who is employed (including employment as a supervisor or as an apprentice) in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment be express or implied, and for the purpose of any proceeding under this Ordinance in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid-off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay-off, or removal has led to that dispute.'* 11. In support of his contention he relied on the judgment of Supreme Court in the case, Pakistan Tobacco Company Ltd. v. Pakistan Tobacoo Company Employees' Union, Dacca and 2 others (1) wherein it was observed that the reason for the use of the words "any person" in section 2(k) of the Industrial Disputes Act, 1947 was intended to cover a workman who has been unjustly dismissed by the Management just before a particular dispute arose between the employers and workmen. It was also observed that the definition of "workman" in clause (5) of section 2 of the Industrial Disputes Act, 1947, includes for tbe purpose of any proceedings under the Act in relation to an "industrial dispute", a workman discharged during that dispute but not one who might have been discharged earlier than the dispute itself, although ^ his dismissal may itself have led to the dispute. Such a previously discharged workman or a person sought to be brought in as a workman, would be within the ambit of the expression "any person".
12. The learned counsel also relied on the judgment of the High Court in the case Messrs The Attock Oil Co., Ltd. v. The Supreme Body of Oilfields League and Refinery Union Rawalpindi (2) wherein it was observed that the suspension of an employee was a matter which directly hits his terms and conditions of service and affects his remuneration. The Union could, therefore, validly come forward and challenge before the Court that the suspension was arbitrarily ordered and, as such the terms of employment of the workers had been affected or that the suspension was not warranted by the terms of their employment. All these matters would certainly fall under the definition (2) 1969 PLC 86? of industrial dispute within the meaning of section 2 (h) of the Industrial Disputes Ordinance, 1959.
13. According to the learned counsel for the appellant the instant cause was much worse than the above case as the services of 10 workers had been terminated. Therefore he argued that the demand for their re-instatement can be made the subject-matter of the industrial dispute.
14. Both these rulings do not apply, because there was no specific provision like subsection (3) of Standing Order l2 in the older law.
15. Subsection (3) of Standing Order l2 specifically lays down that the workers whose services had been terminated could only proceed under section 25-A of the Industrial Relations Ordinance, 1969 if they were aggrieved by the order terminating their services, ln view of the above I uphold this preliminary objection.
16. Even on merits the appellant union has no case.
17. On going through the evidence on record I find that it has been amply proved that the services of the 10 workers were not terminated under any ulterior motive but due to the non-availability of the raw material which was not forthcoming from abroad.
The allegations by the appellant union that the services were terminated by the respondent in order to curb the Trade Union activities is totally false because Muhammad Ismail, General Secretary of the appellant Union in his cross-examination stated:-- "This is also correct that we made no complaint about curbing of our : Trade Union activities by the Management. This is also correct that since the filing of the amended petition till to-day we made no complaint to the Labour Department about curbing of Trade Union activities by the Management. This is correct that whenever we made any demand, a settlement used to be arrived at as a result of negotiations with the employer except the demand which is now the subject- t matter of the industrial dispute/* 18 In the result I find no merit in this appeal, which is hereby dismissed. '