DECISION ' An industrial dispute has been raised between Fauji Oil Terminal and Distribution Co. Ltd.
Employees' Union registered and C.B.A. On the one hand and the Fauji Oil Terminal Distribution Company, Karachi on the other. Charter of 33 demands was served on the Company and the Union gave Notice of Strike. Since no settlement was reached between the Union and the Company and Notice of Strike was given under section 26(3), Conciliator was appointed by the Provincial Government under section 27 of the I.R.O. The Conciliator called a meeting of the parties to the dispute to bring about a settlement under section 30 of the I.R.O. While the conciliation was pending, the company filed a Constitution petition in the High Court calling in question the proceedings before the Conciliator. The Hon'ble High Court of Sindh heard the parties and by consent ordered that if both the parties agreed an arbitrator may be appointed and he might be a Judge of the High Court or Supreme Court. The Arbitrator may then give his award regarding the dispute that had been raised. Before these proceedings could be finalised in the High Court, the Fauji Oil Terminal and Distribution Co. Withdrew the Constitution petition from the High Court and filed an application before the Sindh Labour Court No, IV, Karachi against the General Secretary of the Union, the Registrar of Trade Unions and the Assistant Director, Labour, East Division, Karachi. By this application the relief of injunction had been sought to stop further proceedings before the Conciliator on the grounds that the Notice of Strike under section 26(3) of I.R.O. Issued by the C.B.A.
Was illegal, the conciliation proceedings initiated by the Conciliator had failed to restrain the Union from proceeding with the strike, and to hold that the Union was illegally constituted by the Registrar, because it consisted of workmen as well as supervisors and officers and to declare the appointment of Collective Bargaining Agent to be illegally constituted body. This injunction was sought to operate against the Registrar, Directorate of Labour, and also the Conciliator and the C.B.A. This application was filed under Order XXXIX, Rules 1 and 2 read with section 151, C.P.C.
2. Without discussing the facts or merits of the dispute, it is to be seen whether an application under the Civil Procedure Code for an Injunction under Order XXXIX, Rules 1 and 2, C.P.C. Is maintainable against the Registrar and the Government and whether the C.B.A. Appointment by the Registrar can also be challenged by means of such an application for stay. According to the Oil Company the C.B.A. Was an illegally constituted body from the very beginning. This C.B.A. Was constituted about six months prior to the dispute.
3. The learned Labour Court on the points of there being a prima facie case, balance of convenience in favour of the company and likelihood of irreparable harm in case stay was not granted, granting the prayer of injunction under the C.P.C. Without there being any declaration of the rights of the parties. Thus, the Labour Court fully assumed the character of a Civil Court without considering the procedure laid down for negotiation relating to differences and disputes and raising of an Industrial Dispute under sections 26 to 33 of the I.R.O.
4. A similar question came up before Tufail Ali Abdur Rehman, C.J. And Fakhruddin G. Ibrahim, J. In Brooke Bond Pakistan Limited case reported in 1973 PLC 111. It was observed by Tufail Ali, C.J. In the course of that judgment:-- "That section 36 (I.R.O.) does not really deal with the powers of a Labour Court is made amply clear.
I think by the fact that its main power is conferred by section 35(5) and not section 36; The reference to powers in section 36 is incidental and closely bound up with procedure. It is in subsections (2) and (3) that section 36 makes more careful provision, for procedure and powers, in two different jurisdictions; that while adjudicating and determining an Industrial Dispute the Labour Court can exercise such powers under the C.P.C. As may be described as procedural that is such as are required for the purpose of adjudication and determination, that it is clearly not necessary in order to be able to adjudicate or determine a dispute, that pending the adjudication or determination, a party be restrained from giving effect to order passed by it. That a Labour Court under section 34 has no authority to pass order in nature of interim injunction under Order XXXIX Rule 1, C.P.C."
5. It was accordingly declared that the order of the Labour Court, granting Injunction, was without lawful authority and of no legal effect.
6. It is not understood why the Company withdrew the Constitution petition from the High Court after a decision had nearly been reached by consent of the parties and filed a Civil Suit for "Injunction under Order XXXIX, Rules 1 and 2, C.P.C." before a "Labour Court".
7. It is also doubtful whether the Labour Court could restrain a Registrar and the Directorate of Labour from exercising their legal powers. There is no machinery provided in the I.R.O. Creating such rights and liabilities as held by Z.A. Charm, J. In the case of Mushtaq Hussain Shah reported in PLD 1978 Karachi 612. It was held in that case that under section 8, the Registrar is empowered to register a Trade Union and issue a Registration Certificate. Proceedings can be initiated for cancellation of the registration before the Registrar under section 10 and when the procedure is provided, no other method can be adopted. No mandatory injunction can be issued stopping the Registrar from granting such a registration or from preventing the registered Trade Union to function in accordance with law and procedure. The prescribed procedure has not been observed by the company and the only anxiety of the Company appears to be, to stop die Union in the process of raising of the industrial dispute. No application for cancellation of registration of C.B.A.
Under section 10 of the I.R.O. Has been made for the Registrar to file a complaint before the Labour Court and the Labour Court cannot suo motu stop the registered Union from working, as being illegally constituted. The Registration Certificate of a Union can only be cancelled in the manner prescribed under section 10 and even an order of N.I.R.C. Cancelling the Union registration is not maintainable. The provision of section 10 cannot for any reason be superseded. The Labour Court has no power to issue interim injunction restraining Collective Bargaining Agent from performing its function under Ordinance as held by High Court Karachi in 1980 PLC 339---National Bank of Pakistan Employees Front v. Third Sindh Labour Court, Karachi. Jurisdiction of Civil Courts too is ousted in such matters as held in PLD 1978 Karachi 612.
8. The order of the Labour Court granting injunction under Order XXXIX, Rules 1 and 2, Civil Procedure Code against the Registrar and others is not, therefore, maintainable and is accordingly set aside and the Revision Application is allowed.