DECISION This is an appeal against an award of the learned Presiding Officer of Labour Court No. II, Karachi, dated September 3, 1973, whereby the learned Labour Court ordered the re-instatement of 11 persons with full back benefits and continuity of service. The facts briefly stated and as given in the application under section 34 of the Industrial Relations Ordinance, 1969 (hereinafter called the Ordinance), are these.
2. The application under section 34 of the Ordinance was filed by the Collective Bargaining Agent on 23-12-1970. A Union was formed on 6th September 1970 and was registered on 8th October 1970.
The Management was also informed about the registration by letter dated 17 October 1970, That, on 2 November 1970, after about 15 days of the information of the registration of the Union, the services of 11 persons were terminated, some of them were office-bearers of the Union and others active workers of the Union. No reason for termination was given in the order terminating the services. The total membership of the Union on the date of the applica--tion was 24. It is alleged in the application that the services were terminated because they had formed the Union and were active members of the Union. The action on the part of the Management amounted to illegal lock- out and an unfair labour practice and thus they have contravened the provisions of sections 15 and 46 of the Ordinance. On these grounds they prayed for re-instatement and back benefits from 2nd November 1970 till the the they were re-instated.
3. The learned Labour Court came to the conclusion that there was a lock-out and that the workers were victimized for their Union activities.
4. Mr. Anwar Adil, the learned Advocate for the appellant, has chall--enged the finding of the learned Labour Court. In the first place, he cont--ended that an application under section 34 of theth nd Ordinance was not maintainable by the Union on behalf of the workmen. A perusal of section 34 of the Ordinance would disclose that it is only the workman, as section 34 of the Ordinance stood, when the services of 11 workmen were terminated, who could make an application in respect of any right guaranteed or secured to it or him by or under any law or any award or settlement and not the Collective Bargaining Agent on their behalf. Section 34 of the Ordinance, as it stood at that the 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 it or him by or under any law or any award or settle--ment."
5. Mr. Anwar Adil contended that the word "it" is important and it refers to Collective Bargaining Agent and the word "him" refers to employer or workman. On a perusal of section 34 of the Ordinance, it prima facie appears that the contention of Mr. Anwar Adil must be accepted. The latest amendment of section 34 of the Ordinance, which took place and was published in the Gazette on 10th November 1972, also supports the conten--tion of Mr. Anwar Adil by deleting the word "workman" from section 34 of the Ordinance. Moreover, it cannot be said that if a workman under section 34 of the Ordinance could not apply to the Labour Court in respect of any right guaranteed to him under any law or settlement or awards, he had no other provision of law under which he could ventilate his grievances. This is not so. There was Standing Order 18 of the West Pakistani Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter called the Standing Orders Ordinance), which continued upto 12th April 1972, when it was omitted and section 25-A was introduced in the Ordinance. This continues till today. In this connection, the learned Advocate for the respondent made a reference to section 49 of the Ordinance and contended that the provision of law provides that a Collective Bargaining Agent can represent a party. There is not much force in this contention. There is clear distinction between representation and espousing the cause through an application in a Court of Law, This must be conferred through Legislature either impliedly, or explicitly. A reading of, section 34 of the Ordinance, as it stood on the date when the services of 11 workmen were terminated, does not confer any such right on the Collective Bargaining Agent.
6. Before the learned Labour Court only 4 persons filed their affidavits and were cross-examined namely, (1) Shamsuddin Khan, President, (21 Irshad Ali, Vice President, (3) Shamimuddin Khan General Secretary, and (4) S. M. Raza, Member, Working Committee. Three of these persons, namely, Shamsuddin Khan, Irshad Ali and S. M. Raza, admitted that not all the office---bearers of the Union were dismissed from service. It is only Shamimuddin Khan, General Secretary who stated otherwise. It, therefore, cannot be said to be a case of victimization of office-bearers. Moreover, no particulars of victimization had been given. Mere general allegation is not sufficient to, prove victimization. A list of activities described as Unfair Labour Practices is given in section 15 of the Ordinance. None of the grounds stated in section 15 of the Ordinance is alleged, much less proved against the employers. I would hold that no case of victimization is made out.
7. It was also contended by Mr. Anwar Adil that the reason for terminating the services was not to be given in the termination letter, as the law stood on 2nd November 1970 the requirement of giving reason was introduced much later. The Court has to apply the law, which is there when the cause of action arose. The finding of the learned Labour Court that the termination of the services of 11 persons was bad in law, is not warranted by law and, therefore, is set aside.
8. Lastly, it was contended by Mr. Anwar Adil that the documents relied upon by the learned Court for his conclusion shat Standing Order 13 was not complied with is based on documents brought on the record without the knowledge of the appellant and, therefore, the learned Court should have ignored these documents. The Court, in fact, had already disallowed the application of the respondent to bring these documents on record as it was very belated request.
9. For the reasons given above the appeal is allowed and the award of the learned Labour Court is set aside,