1. ' MUKHTAR AHMAD JUNEJO, J.--Petitioners M/s. Ramzan Ali & Co. Cotton Ginning and Pressing Factory, Mirpur Khas have invoked Constitutional jurisdiction of this Court, against the decision given in Application No, HYD-338/1989 on 23-11-1989 by the Sindh Labour Appellate Tribunal (Hereafter mentioned as the Tribunal) reversing the order dated 13-31989 passed by the Labour Court, Hyderabad.
2. ' General Secretary of Employees' Union Ramzan Ali & Co. Cotton Ginning and Pressing Factory (respondent No,. 1) moved an application (being Application No, 1 of 1989) under section 34 of Industrial Relations Ordinance (IRO) against the petitioners in the Labour Court at Hyderabad.
3. During the proceedings of said application Mr. N.A. Talpur, Advocate appeared on behalf of the petitioners as their counsel. The respondent No, 1 raised an objection before the Labour Court against appearance of Mr. N.A. Talpur as counsel for the petitioners, on the ground that he had not obtained permission of the Court under subsection (3) of section 49 of the IRO. It was also contended before the Labour Court on behalf of the respondent No, 1 that every dispute between an employee or trade union and the management before said Court, is 'Industrial Dispute' and the Employer can be represented by an advocate only when such permission is obtained by the Employer. On the other hand it was convassed on behalf of the petitioners before the Labour Court, that the application filed in said Court by the respondent No, 1 was in respect of right guaranteed and secured under the law, which cannot be the 'industrial dispute' as per the definition given in section 2(13) of the IRO. It was also argued before the Labour Court on behalf of the petitioners, that the application made by the respondent No, I was under section 34 of the IRO which specifically refers to right guaranteed and secured and hence it cannot be an "industrial dispute', requiring necessary permission of the Labour Court under section 49(3) of the IRO for a party to be represented by an advocate.
4. ' After hearing representative of the respondent No, 1 and the Advocate for the petitioner, the Labour Court under an order dated 13-3-1989 dismiss the objection raised and took view that Mr. N.A. Talpur can represent petitioners in the application filed under section 34 of the IRO without receiving permission under section 49 of the IRO. While taking such decision, the Labour Court relied on the case of M/s. Ghulam Hussain Hidayatullah Textile Mills Limited v. Muhammad Jamal (1984 PLC 771) decided by the Tribunal, where the view taken was that proceedings under section 25-A of IRO are not proceedings relating to an industrial dispute' envisaged under section 49 of the IRO and, therefore, no permission is required by the employer to be represented through an advocate in such matter. Said Order dated 13-3-1989 was examined by the Tribunal on an Application No,HYD-338/89 having been moved before it by the respondent No, 1, challenging legality, propriety and correctness of the same. After reviewing the relevant provisions of law and making an elaborate examination of the case-law, learned Tribunal under the impugned decision dated 23-11-1989 disagreed with the aforesaid view taken in the case of M/s. Ghulam Hussain Hidayatullah Textile Mills Ltd. (1984 PLC 771) and took view that Mr. N.A. Talpur who had designated himself to be an advocate, cannot appear on behalf of the petitioners in the said case in the Labour Court, without obtaining permission under section 49(3) of the IRO Consequently order of the Labour Court was set aside and the Labour Court was called upon to decide the question of appearance of Mr. N.A. Talpur in the case, by firstly ascertaining whether Mr. N.A. Talpur was enrolled as an advocate under the Bar Councils Act, and then deciding the question of appearance of Mr. N.A. Talpur after an application was moved by the petitioners under section 49(3) of the IRO. Hence the petition.
5. ' Mr. Muhammad Ibrahim, respondent No, 1 argued the case personally and contended that an application under section 34 of IRO is to be moved in respect of an 'Industrial dispute' and as such the provisions contained in section 49 of the IRO are attracted to the present case. Reliance was placed on the case of Syed Muhammad Hussain v. M/s. Pakistan Tobacco Co. Ltd. And another PLD 1980 SC 80.
6. ' On the other hand Mr. N.A. Talpur, appearing before this Court as counsel for the petitioners, argued that moving of an application under section 25-A of IRO or under section 34 of IRO, did not amount to raising of an "industrial dispute", as defined under section 2(xiii) of the IRO. It was next argued that the provisions contained in subsection (3) of section 49 of the IRO apply only in respect of an "industrial dispute" and not in respect of the enforcement of any right guaranteed or secured by or under any law, award or settlement for the time being in force. In support learned counsel for the petitioners cited the cases of:--
(i) Karachi Pipe Mills Employees' Union, Karachi v. Karachi Pipe Mills Ltd. Karachi 1992 PLC 143.
(ii) Karachi Pipe Mills Ltd., v. Sindh Labour Appellate Tribunal and others PLD 1984 Kar.
7. 503.
(iii) Habibul Haq v. The Sargodha Vegetable Ghee and General Mills and others 1991 PLC 899.
(iv) Mumtaz Saleem and others v. Pakistan Telecommunication Corporation 1993 PLC 445.
(v) KSB Employees' Association v. K.S.B. Company Limited, Hassan Abdal 1991 PLC 193.
8. ' According to clause (xiii) of section 2 of I.R.O., "industrial dispute" means any dispute or difference between employers and employers or between employers and workmen or between workmen and workmen, which is concerned with the employment or non-employment or the terms of employment or the conditions of work of any person and not in respect of the enforcement of any right guaranteed or secured to him by or under any law, other than IRO, or any award or settlement for the time being in force. In the instant case, the respondent No, I moved an application in the Labour Court under section 34 of the I.R.O. For enforcement of a right guaranteed or secured to him under Standing Order 11-A of W.P. Industrial and Commercial Employment (Standing Orders)
9. Ordinance, 1968 which is a law other than the IRO, for purposes of A clause (xiii) of section 2 of the IRO. Hence the proceedings initiated by the respondent No,1 under section 34 of the IRO appear to be beyond the purview of clause (xiii) of section 2 of the IRO and excluded by the latter. Section 34 of IRO authorities any C.B.A. Or any employer to apply to the Labour Court, for the enforcement of any right guaranteed or secured to such C.B.A. Or to such employer, by or under any law or any award or any settlement. Scope of section 34 of IRO is confined to "enforcement of any right guaranteed or secured". The matters about enforcement of any guaranteed or secured right, have been differentiated, from rest of the matters in the provisions contained in clause (xiii) of section 2 of the IRO. While defining "industrial dispute" under clause (xiii) of section 2 of the IRO, the Legislature has taken care to see that a dispute or difference which is concerned with the employment or non-employment or the terms of employment or the conditions of work of any person, is differentiated from the dispute or difference in respect of the enforcement of any right guaranteed or secured by or under any law other than IRO or any award or settlement. Exclusion of the matters in respect of the enforcement of any right guaranteed or secured by or under any law, other than IRO, or any award or settlement, from the definition of "industrial dispute" appears intentional if one looks at the language used in drafting section 25-A or section 34 of the IRO.
10. Whatever has been excluded from the ambit of clause (xiii) of section 2 of the IRO, has been put in sections 25-A and 34 of the IRO. The Tribunal has referred to the case of M/s. Ghulam Hussain Hidayatullah Textile Mills Ltd. v. Muhamamd Jamal 1984 PLC 771. In said case, decided by Mr. Justice (Retd.) Z.A. Channa Chairman Tribunal (as he then was), the view taken was that the definition of "industrial dispute" given in section 2, sub-clause (xiii) of IR expressly excludes from its purview individual grievances under section 25-A of I.R.O., which are limited to enforcement of rights of individual workmen guaranteed or secured by any law, an award or a settlement. In same case it was further observed that proceedings under section 25-A of the IRO pending before the Labour Court, are not proceedings relating to an industrial dispute' which can be raised only in prescribed manner under section 43 of IRO by a Collective Bargaining Agent or an employer. In the case of M/s. Ghulam Hussain Hidayatullah Textile Mills Ltd., reference was made to the case of Jalaluddin v.
11. Orient Watch Company 1968 PLC 137 where a D.B. Of the erstwhile High Court of West Pakistan had observed that a dispute between an individual workman and employer cannot be an "industrial dispute" as defined under the Industrial Disputes Act. Similar view appears to have been taken in the case of Karachi Pipe Mills Ltd. v. SLAT and others PLD 1984 Karachi 503.
12. ' Respondent No, 1 Muhammad Ibrahim cited the case of Syed Muhammad Hussain v. M/s. Pakistan Tobacco Co. Limited and another PLD 1980 SC 80 where it was held that if the concept of agency is to be regarded as inherent in the word "himself" appearing in subsection (1) of section 25-A of IRO, then plainly it would be against its real meaning and this could not be the intention of the Legislature which has purposely used said word to avoid legal quibbles. It was also held in the cited, case that the only alternatives to the workman filing the grievance application is, through his shop steward or CBA. It was further held that scheme of the legislation of IRO shows that the appearance through legal practitioners is restricted and wherever he is eligible to appear, it has been so enacted and this intent is made obvious by section 49 of IRO. In said case the Supreme Court of Pakistan upheld decision of a High Court holding that the word "himself" occurring in subsection (1) of section 25-A of IRO, means the worker himself and not his agent such as his advocate. In said case the point whether provisions contained in subsection (3) of section 49 of IRO covered the cases where enforcement of secured or guaranteed right was sought, did not arise.
13. Moreover the Supreme Court of Pakistan in the case of Syed Muhammad Hussain was considering the question of a worker bringing his grievance in respect of any right guaranteed or secured to him, to the notice of his employer under subsection (1) of section 25-A of IRO, the provisions of which are materially different from the provisions contained in subsection (4) of section 25-A of IRO. The words "either himself or through his shop steward or Collective Bargaining Agent" appearing in subsection (1) of section 25-A are conspicuously missing from subsection (4) of section 25-A of IRO and this makes all the difference. The observations made by the Supreme Court of Pakistan in the cited case appear to have been made in relation to the provisions contained in clause (1) of section 25-A of the IRO which relate to bringing of a grievance in respect of any guaranteed or secured right to the notice of the employer. Aforesaid observations do not appear to have been made in relation to the provisions contained in se (4) of section 25-A of the IRO which relate to taking a grievance to the about Court. Moreover no authority was cited by the respondent No, 1 in support of his contention that every matter that was brought before a Labour Court under section 34 of IRO was an "industrial dispute". Section 34 itself does not say so. Section 34 is restricted to enforcement of any right guaranteed or secured to a C.B.A. Or any employer. All this lends support to the view that enforcement of any right guaranteed or secured under any law or any award or settlement under section 34 or section 25-A of IRO, is not the same thing, as raising of an industrial dispute under section 43 of IRO, or under section 34-A of IRO.
14. ' The cases cited by Mr. N.A. Talpur, learned counsel for the petitioners require to be examined. In the case of Karachi Pipe Mills Employees' Union 1992 PLC 143 decided by a learned Full Bench of this Court, it was observed as follows:-- "One of the functions of the C.B.A. Is to raise an industrial dispute when there is any difference between employers and employers or between employers and workmen which is connected with the employment or non-employment or terms of employment or the conditions of work of any person and it involves a lot of workers. The CBA would sponsor such dispute. It is only a collective dispute that can be considered an industrial dispute and combined interest of all the workers would be the prime factor for raising such dispute. Action or omission on the part of the employer which affects more than one worker would Constitute industrial dispute. Similarly when the workers do something in derogation of law or abstain from doing such thing which they are legally bound to do it, the employer can raise an industrial dispute. In such a situation, the C.B.A. Would undertake collective bargaining in addition to rights already guaranteed. It means to raise new dispute concerning employment, non-employment or conditions of work."
15. ' This shows that an industrial dispute can be raised only in respect of any difference between employers and employers or between employers and workmen connected with the employment or non-employment or the terms of employment or the conditions of work of any person and involving a lot of workers. It was not held if an application moved by a C.B.A. Under section 34 of IRO for enforcement of secured or guaranteed rights of workers, would amount to raising of an industrial dispute. In the case of Karachi Pipe Mills Ltd. PLD 1984 Kar. 503 decided by a Full Bench of this Court there is comparison between the provisions contained in section 25-A of IRO and the provisions contained in section 34 of IRO. In said case it was observed in relation to the provisions contained in section 22(12), clause (a) of the IRO, that the Collective Bargaining Agent can undertake collecting bargaining with the employer or employers on matters connected with employment/non-employment, the terms of employment or the conditions of work; but so far as a worker is concerned rights guaranteed or secured to him under any law or any award or settlement , have to be enforced in accordance with the provisions of section 25-A of the IRO. The difference pointed out is in line with the language used in clause (xiii) of section 2 of the IRO defining the term "industrial dispute". In said case of Karachi Pipe Mills Ltd. It was also observed that under the provisions of section 49 of the IRO, a workman is entitled to be represented in any proceedings under the IRO by an officer of a C.B.A. And not the C.B.A. But he must be party to an industrial dispute. Conversely it can be said that a workman who is not a party to an industrial dispute, is not entitled to be represented in any proceedings by an officer of CBA. It would be unnecessarily stretching the provisions of subsection (3) of section 49 of IRO to an application moved under section 34 of IRO for enforcement of any right guaranteed or secured to a C.B.A., if something existing in former provisions is read in the later. Provisions.
16. ' In the case of Habibul Haq 1991 PLC 899 a Full Bench of Lahore High Court while dealing with the provisions contained in section 25-A of the IRO observed as follows:-- "A perusal of the aforementioned provisions leads to an irresistible conclusion that where the matter is to be considered by a domestic forum, the representation by the worker will be through in home agencies viz. Himself, Shop Steward or the Collective Bargaining Agent, but where the matter goes to an outside forum like a Court, then the parties are not to be deprived of the essential assistance of a technical person like a legal practitioner. This interpretation finds support from the very specific and clear omission of the word "himself" from subsection (4) of section 25-A when read in comparison with subsection (1) thereof."
17. ' It was also observed as below:-- "It may be observed that the two provisions viz. Subsection (1) and subsection (4) of section 25-A of the Industrial Relations Ordinance are intended to cater for different situations which are in no manner overlapping or even similar; one is intended to have the settlement of grievances within the domestic sphere, whereas the other is intended to have an adjudication of a cause or lis before a forum which is in the nature of a Court."
18. ' It was also observed as below:-- "It is the admitted position and so is the law clear on the subject that by virtue of section 36 of the Industrial Relations Ordinance, 1969, a Labour Court shall be deemed to be a Civil Court. That being so, the provisions of Civil Procedure Code unless they be repugnant or specifically excluded by the Industrial Relations Ordinance shall be deemed to be applicable to the proceedings before the Labour Court, which would mean that Order III, Rule 1, C.P.C. Would also be applicable to proceedings before a Labour Court."
19. ' In the case of Mumtaz Saleem and others 1993 PLC 445 the N.I.R.C. Took view that section 43 of IRO did not recognise existence of an industrial dispute, unless it was raised by a C.B.A. In prescribed manner. In the case of K.S.B. Employees' Association 1991 PLC 193 the view taken by the Chairman, N.I.R.C., was that text of section 49 of IRO would show that it gives para meters of representation in case of workers or employers only when either of them is a party to an industrial dispute and not in a case where an application is moved seeking enforcement of a settlement. The Chairman, N.I.R.C.
20. Also took view that a dispute between an employer and an individual workman does no longer fall within the definition of "industrial dispute" as defined by section 2(k) of the Industrial Disputes Ordinance, which was predecessor of the I . R .0 .
21. ' Reverting to facts of the instant case, it is clear that by moving a application under section 34 of I.R.O., the respondent No, 1 did not raise an "industrial dispute" attracting the provisions contained in section 49 of IRO and C consequently the restriction imposed on appearance of an Advocate in this matter did not arise.
22. ' While holding in the impugned decision that scope of proceeding before the Labour Court has been very much widened by use of the word "any" in ' subsection (1) of section 49 of the I.R.O. And would include even the proceeding before the Labour Court, the learned Tribunal appears to have overlooked frequent use of words "industrial dispute" in every subsection of section 49 of I.R.O. The words "any right guaranteed or secured" used in sections 25-A and section 34 of I.R.O. Cannot be substitute for the words "industrial dispute" and vice versa. A grievance application moved under section 25-A of I.R.O. Shall be treated as an industrial dispute only for the purpose of deciding it within seven days, as appears from last line of subsection (4) of section 25-A of IRO. Unfortunately learned Tribunal has not given convincing reasons for disagreeing with the view taken in the judgment reported in 1984 PLC 771.
23. ' For the foregoing reasons, we declare the impugned decision by the learned Tribunal to have been passed without lawful authority and to be of no legal effect. We uphold the view taken by the Labour Court that Mr. N.A. Talpur can represent the petitioners in the matter under section 34 of I.R.O., without seeking any permission under subsection (3) of section 49 of I.R.O., except that the Labour Court shall ascertain whether Mr. N.A. Talpur is duly enrolled as an advocate under the Bar Councils Act. There shall be no order as to costs.