This is an appeal against the award dated 5-9-1975 of Punjab Labour Court No. 2, Lahore, dismissing the petition under section 32(1-A) of Industrial Relations Ordinance, 1969.
2. M. M. Isphahani Tea Packetting Labour Union, appellant issued demand notice on 14-9-1974 against the Management, i.e. Messes M. M. Isphahani Tea Packetting Factory, respondent. After failure of bilateral negotiations the appellant-Union issued strike notice which was served on the respondent on 26-9-1974. The matter then went before the Concili--ator, who failed to bring about a settlement between the parties. The Conciliator thereupon issued a Failure Certificate. The appellant thereafter filed a petition under section 32 (1-A) of Industrial Relations Ordinance, 1969 before the learned Labour Court for the adjudication of demands mentioned therein. The Respondent raised the following preliminary objections:-
(1) The since the appellant-Union had no certificate of Collective Bar--gaining Agent, it could not raise the dispute.
(2) That the appellant-Union was not legally constituted and as such could not raise the dispute.
(3) That the appellant-Union had more than 25 % outsiders as o bearers and on that account to the dispute was not maintainable.
3. The learned Labour Court overruled the first objection but upheld the second and third objections and dismissed the petition.
4. Aggrieved by the above award the appellant-Union has preferred this appeal.
5. The learned counsel for the respondent reiterated the aforemen--tioned preliminary objections.
6. Preliminary Objection No. 1.--- Prior to 13-10-1974, Section 22(1) of Industrial Relation Ordinance 1969 read 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 1/3rd of the total number of workmen employed in such establishment, or a group of establishments, deem to be Collective Bargaining Agent for such establishment or group.---
7. On 13-10-1974 the aforementioned section was amended and it now reads as follows: - ---Where there is only one registered Trade Union in an establish--ment or a group of establishments, that Trade Union shall, if it has as its members not less than 1/3rd of the total number of workmen employed in such establishments or group of establish--ments, 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.---
8. From the above it is clear that now if there is only one Trade Union in an establishment or group of establishments it has to be certified by the Registrar as a Collective Bargaining Agent. Further according to section 43 of the Ordinance no Industrial Dispute shall be deemed to exist unless it has been raised in the prescribed manner by a Collective Bargaining Agent or an employer. In the present case, as already mentioned above, demand notice by the appellant was served on the Management on 14-9-1974 and strike notice on 26-9-1974. Under section 26(2) of the Ordinance ten days are required for bilateral negotiations between the parties. Under section 26(3) of the Ordinance when no settlement has been reached, the Collective Bargaining Agent can serve a strike notice within seven days after the expiry of ten days allowed under section 26(2). The ten days for bilateral negotiations expired on 24-9-1974 and strike notice was given on 26-9-1974, which shows that it was within the. It is an admitted fact that the appellant-Union is the only Union in the establish--ment, therefore, when it raised the industrial dispute it was deemed to be a Collective Bargaining Agent as required under section 22(I) of the Ordinance prior to the amendment on 13-10-1974 and as such it had the vested right to raise the instant dispute.
9. Further under section 32(1-A) of the Ordinance the party raising the dispute either before after the commencement of a strike can make an application to the Labour Court for the adjudication of the dispute. Under these circumstances the appellant-Union had the right to file the petition under section 32(1) before the Labour Court. In view of the above this objection is overruled.
10. Second preliminary objection.-Abdul Aziz, Senior Clerk of the office of Registrar, Trade Unions, Lahore stated that at the the of the registration of the appellant-Union it had 48 members and that position was the same uptill the day when he made the statement before the Labour Court. His statement was recorded on 27-6-1975. He also added that the number of office-bearers of the appellant-Union was 12. According to Rule 5 of the Punjab Industrial Relations Rules, 1973 when the number of the members of the Union is not more than 50, then the said Union can only have 5 persons forming its executive. In the present case the number of office-bearers is 12, which is far more than the number prescribed by the Rules. Under these circumstances the appellant-Union is not legally consti--tuted and as such cannot raise the industrial dispute. The objection is accordingly upheld.
11. Preliminary Objection No. 3.-According to Abdul Aziz, Senior Clerk of the office of the Registrar, Trade Unions, Lahore, Abdus Salam Siddiqui, General Secretary of the appellant-Union and Ghulam Nabi Bhullar, member of the Executive, who were outsiders, were members of the Union. He also stated that Muhammad Aslam, Muhammad Khalid and Faiz Ahmad were still members of the Union. Muhammad Aslam was the President, Faiz Ahmad was the vice-President, and Muhammad Khalid was the Joint Secretary of the Union. Abdul Salam, General Secretary of the Union, admitted that on dismissal by the Management Faiz Ahmad and Muhammad Khalid filed applications before the Junior Labour Court, which re-instated them. On appeal by the Management their re- instatement was set aside by the Senior Labour Court, vide its judgment Exh. RD dated 31-8-1974.
From the above a it is clear that Muhammad Khalid and Faiz Ahmad had become outsiders and therefore the demand for their re-instatement could not have validly been made. It is admitted that Muhammad Aslam, President of the Union, was also dismissed by the Management but he had not filed any application before the Junior Labour Court for his re-instatement. From the above it is clear that 5 persons namely, Abdul Salam Siddiqui, Ghulam Nabi Bhuller, Muhammad Khalid, Faiz Muhammad and Muhammad Aslam who are outsiders, are still the office---bearers of the Union. According to section 7(i)(d) of Industrial Relations Ordinance, 1969, the number of persons forming, the executive which shall not exceed the prescribed limit and shall include not less than seventy-five per cent. From amongst the workmen actually engaged or employed in the establishment or establishments or the industry from which the Trade Union has been formed Thus from the above it is clear that only twenty-five per cent. Of outsiders can be made office-bearers of the Union. In the present case out of 12 office-bearers, five are outsiders. In other words they are more than 25 % which is a clear violation of law. In the result this objection is upheld.
12 The learned counsel for the appellant, however, contended that a worker who has been dismissed, discharged, retrenched, laid of, or other--wise removed from employment, will be a worker within the definition of a worker as given in section 2(xxviii) of Industrial Relations Ordinance, 1969. This contention has no force because the removal of Muhammad Aslam, Muhammad Khalid and Faiz Ahmad from employment was not solely in connection or a consequence of that dispute or whose dismissal or removal had led to that dispute, because there were 17 other demands in addition to the demand for their re-instatement.
1. I, accordingly, find no merit in this appeal which is hereby dismissed.