' This is a petition under section 34 of the IRO, 1%9 wherein the petitioner i.e, H.B.L. Employees Federation of Pakistan through its President Mr. Sultan Muhammad Malik are seeking directions that the respondents in utter disregard to their lawful rights for the appointment of the children of the deceased employees be restrained from conducting Test and Interviews. It was further prayed that the recruitment of Cashiers and Guards by the respondents be also declared in violation of the Wage Commission Award. Directions were also sought that the respondents be restrained from such violation of the lawful rights guaranteed and secured to the petitioners under Wage Commission Award as well as under the various settlement carried out between the parties on various occasions. An application for interim injunction under section 32(2) of the NIRC (Procedure and Functions) Regulations, 1973 was also filed on which this Court granted interim injunction whereby the respondents were restrained from conducting Test and Interviews etc. Vide order of this Court dated 20-10-1994.
2. The respondents strongly contested the petition thereby raising certain preliminary objections as to maintainability and jurisdiction of this Court. They also filed the rejoinders to stay application.
Alongwith these rejoinders an application seeking modification in the order dated 2-10-1994 was also filed but was not pressed by the learned counsel for the respondents and, therefore, the same is dismissed. The counsel for the respondents also filed an application under section 151, C.P.C.
Contending therein that there is no factual controversy between the parties which require production of evidence etc. The case can be disposed of on the basis of oral arguments by the learned counsel of the parties. This application was not contested by the petitioners rather the proposal made therein was accepted by the counsel for the petitioner and by the consent of the parties, the entire case was heard.
3. In the meanwhile, an intervener i.e, Habib Bank Employees Union, Karachi who is a certified CBA through its General Secretary filed an application under Order 10, Rule 1, C.P.C. And wanted to become a party in the proceedings as according to them any decision in the petition would also affect their rights. Notice of this application was given to the parties. The petitioner did not contest this application. However, the respondents contested the application by filing the rejoinder to the application with consent of all the learned counsels arguments were also heard upon this application. The case of the intervener rests upon the same foundation as of the petitioner and was opposed by the learned counsel for the respondents almost upon the same grounds as were raised in the written statement to the main petition with the only difference that the petitioner was not a certified CBA, while the intervener is a certified CBA. As the question for determination in the main case/petition will also affect the rights of the intervener, therefore, in the interest of justice I think it proper to allow the intervener to join the proceedings as otherwise no prejudice will be caused to the parties of the proceedings in any manner. The objection by the learned counsel for the respondents that the intervener has already filed a petition on the same grounds before the learned Labour Court at Karachi i.e, 5th Sindh Labour Court, Karachi would not affect the proceedings of this Court or jurisdiction of this Court in the light of the provision of section 22-A subsection (12) 1st proviso of the Industrial Relations Ordinance, 1969.
4. The name of the intervener be incorporated in the main petition as a respondent. The counsel for the intervener was allowed to advance his arguments on the main petition. The contention legal objection of the counsel for the respondents that the petition is not maintainable as the provisions of the section 34 can only be invoked by the CBA and not a registered trade union or any other person as based upon the provision of section 34 of the Industrial Relations Ordinance, 1969 which are reproduced as under:-- "Any Collective Bargaining Agent or any Employer 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."
5. This contention also gets support from the case titled as Karachi Pipe Mills Employees' Union v.
Karachi Pipe Mills Limited, Karachi reported in 1992 SCM R 36, therefore, it is very much clear that the law has given certain privileges to the CBA which can only be enjoyed by the CBA and no other person, until and unless it has obtained the status of CBA, can enjoy these privileges, however, the case in hand, after the joining of the intervener as a party, is distinguishable on the ground that the intervener is a CBA and has got almost same grievances against the respondents for which the persons petitioner is seeking redress. Therefore, in the present circumstances, after allowing the intervener to join the proceedings as a necessary party I do not think it proper to dismiss the entire case on this ground alone as the irregularity, if any, has been rectified. Besides the present petitioner after negotiating with the respondents and reaching upon certain settlements which are filed on record and which are. Also admitted by the respondents, has obtained the status of CBA, although it has not fulfilled the prescribed procedure as required under the law i.e, under section 22 of the IRO, 1969, as also already held by this Commission in judgment titled of National Organisation of Postal Employees v. Director-General, Pakistan Post Offices reported in PLC 1987 page 730, therefore, the petition is very much maintainable on this ground. The second contention of the learned counsel for the respondent is that the petitioner has no right guaranteed under the law, Award or Settlement, therefore, the petition is not maintainable, is not well-founded. The case of the petitioner rests not only upon the provisions of the Wage Commission Award but also upon the various Settlements reached upon by the parties on various occasion and therefore such right is not only vested in each and every worker but also in the petitioner as their representative and the intervene as CBA. The next objection of the respondent is that the petition bears forged signature of the petitioner is also without any cogent reason as the petitioner is himself present in the Court and owns his signatures upon the petition, therefore, there is no other option with the Court but to accept the signatures of the petitioner as genuine. Now adverting to the main contention in the petition I think it proper to re-produce the provision of para. No, 145 of the Wage Commission Award published in extraordinary Gazette of Pakistan dated 27-8-1984.
"It has been represented to us that in the event of death of employees while service, even after taking into account the payment from provident fund, pension and gratuity, families of the deceased face considerable financial difficulties. As a measure of providing further financial help to families of deceased employees at least one child of the decased member of the staff should be appointed by the Bank or Financial Institution concerned against the first available vacancy in the grade for which the child would be eligible under the normal rules. The demand is fair and reasonable and we decide that at least one child of a deceased employee, who satisfied the qualification for entry into service, may be appointed in the service of the Bank or Financial Institution concerned against the first available vacancy, in preference to other candidates."
' On the basis of the abovementioned para., it is clear that at least one child of the deceased employee or member of the staff should be appointed by the, respondents against first available vacancy in the grade for which the child would be eligible under normal rules and, therefore, the said provision of the Wage Commission Award has vested a right in the petitioners for which the respondents has no plausible explanation to reject or discard. The respondents are admittedly conducting Test and Interviews without considering and complying with the requirements of the said para. Of the Wage Commission Award. Besides, the respondents have although challenged the petition on the legal suspects but have got no positive reply on the basis whereof the lawful vested right of the petitioner should be ignored. There are also various other settlements, duly signed by both the parties i.e, the petitioner and the respondent whereby this demand of the petitioner has also been admitted by the respondents. It is necessary to observe here that the right of the petitioner is also subject to the condition that the child of the deceased employee should fulfil and qualify all the requirements necessary or as laid down for the post/vacancy for which he has applied. The arguments of the learned counsel for the respondents that petition is in contravention of the provisions of the Constitution of Islamic Republic of Pakistan, 1973 whereby equality before law has been guaranteed, are also misleading as in my opinion the petition does not contravene any provision of the Constitution of Islamic Republic of Pakistan, 1973. The petitioner is seeking implementation of a right which has been conferred upon him by the Wage Commission Award or other Settlements and equality before the law does not mean no person can have some legal rights secured under some enectment Award law or settlement. Even otherwise to enforce such rights will not be fixation of quota system but a protection to the right enjoyed by the petitioner.
6. In the light of the above discussion, the petition is accepted and the respondents are directed to consider the children of the deceased employees or children of the deceased members of the staff against first available vacancy in each grade as a candidate for which the child would be eligible under the normal rules and not to recruit upon the posts of Cashier and Guards without complying with the requirements of para. 145, as enumerated above of the Wage Commission Award, in future. There shall be no orders as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.