' The above cases are inter connected and common questions of law and mixed questions of law and facts, hereinafter be referred have been raised. As such these cases are being disposed of by this common order.
2. Brief facts of above cases are that Corn Pak Limited is a public limited company engaged in the manufacture of glass tubing vial, ampules and tube lights. Originally it was named as Corning Glass Pakistan Limited and its name was changed as Corn Pak Limited in 1982. Corn Pak Employees Union in the establishment of Corn Pak Limited, was originally named as Corning Glass Employees Union by which name it was registered with the Registrar of Trade Unions, Karachi vide registration certificate dated 26-12-1969 under the Industrial Relations Ordinance, 1969, and due to change of name of the company name of the union was also changed as Corn Pak Employees' Union and was registered by the present name on 4-7-1982 with the Registrar of Trade ,Unions, Sindh Karachi.
Corn Pak Employees union claims to be C.B.A. In the establishment of Corn Pak Limited on three fold grounds firstly provisional C.B.A. Certificate issued under subsection of section 22(1) of I.R.O. By Registrar of Trade Union, Sindh Karachi in its original name Corning Glass Employees Union on 15- 6-1976 being single registered trade union in the establishment at that time, secondly that one another union by name Corning Glass Workers' Union had come in existence thereafter and there was referendum held on 18-10-1976 between the Corning Glass Employees Union (now the Corn Pak Employees Union) and Corning Glass Workers Union by the Registrar of Trade Unions, Karachi as result whereof the Corning Glass Employees Union (now Corn Pak. Employees Union) succeeded in the referendum and then another provisional C.B.A. Certificate was issued to the Corn Pak Employees Union (Previously named as Corning Glass Employees Union) under subsection (2) of section 22 of the I.R.O., 1969 by the Registrar, Trade Unions, Karachi, which by passage of time due to change of office-bearers has been lost, thirdly by recognition and acceptance of Corn Pak Employees Union as C.B.A. By the management of Corn Pak Limited in pursuance of the settlements to have been executed by the management of Corn Pak Limited with Corn Pak Employees Union since last about 20 years. Corn Pak Limited has challenged the status of C.B.A. Of Corn Pak Employees Union and has categorically stated that Corn Pak Employees Union does not possess C.B.A. Certificate in prescribed form ' S' under Rule 31 of the Industrial Relations (Sindh) Rules, 1973 as such has no locas standi to represent the workers and the settlements so for executed earlier were on this misunderstanding and belief that the Corn Pak Employees Union must be in possession of C.B.A. Certificate as prescribed in form 'S' under Rule 31 of Industrial Relations (Sindh) Rules, 1973.
This was due to good faith of Management of Corn Pak Limited and concealment of the fact by the Corn Pak Employees`Union that it does not possess C.B.A. Certificate as prescribed under the rules, and therefore their recognition or acceptance by the management of Corn Pak Limited in executing the settlements with the Union, will not automatically give the status of C.B.A. To Corn Pak Employees Union, because the registered trade union acquires the status of C.B.A. Only when if it is single union in the establishment, it is issued certificate of C.B.A. By the Registrar of Trade Unions as prescribed in form 'S' rule 31 of Industrial Relations (Sindh), 1973 under section 22(1) of the Industrial Relations Ordinance, 1969, and in case of more than one registered trade unions in the establishment, any of the registered trade union, as result of referendum held by the Registrar of Trade Union, succeeds, and is issued certificate of C.B.A. By the Registrar of Trade Unions in prescribed form 'S' of the rule 31. Of Industrial Relations (Sindh) Rules, 1973.
3. Dispute resulting in multiplicity of the litigation started between the parties from 1-1-1997 when the Corn Pak Employees Union served a notice under section 26(i) of the I.R.O., 1969 along with fresh charter of demands assuming that the Memorandum of settlement executed between the management and the union on 8-2-1995 is deemed to have expired on 31-12-1996. This notice gave cause of action to Corn Pak Limited, who filed the Application No,4A(3)/97 under section 22- A(8)(g) of I.R.O., 1969 read with Regulation 32(2)(c) of N.I.R.C. (P&F) Regulations, 1973, wherein the Corn Pak Limited took the stand that in terms of section 40(2) of I.R.O., 1969 a settlement continues to be binding on the party after expiry of period as agreed upon until the expiry of two months from the date on which either party informs to other party of its intention no longer to be bound by the settlement. Since neither the management nor the union has served notice of two months to terminate the settlement as is contemplated in terms of section 40(2) of the I.R.O., 1969, as such the settlement dated 8-2-1995 continues to remain in operation and binding on the parties. It was stated that there was apprehension that the union will serve strike notice no expiry of period of 10 days for bilateral negotiations and since the settlement dated 8-2-1995 continued to remain in operation and during the subsistence of settlement dated 8-2-1995 fresh charter of demand was served by the union on the Management of Corn Pak Limited and there was threat of strike, which will be illegal strike and an act of unfair labor practice as contemplated under section 46(1)(d) and section 16(1)(e) of I.R.O., 1969. In the petition the Corn Pak Limited also filed application under Regulation 32(2)(c) of N.I.R.C. (P&F) Regulation, 1973, supported by affidavit of Mr. S.H.A. Jazbi, Divisional Manager, Personnel and Administration and Notified Manager under the Factories Act, 1934, whereupon the then learned Member Mr. Muhammad Hussain Chaudhry on 16-1-1997 passed interim prohibitory orders restraining the Corn Pak Employees Union from giving effect to the demand notice/strike notice and not to adopt coercive measures to pressurize the management for acceptance of the demand. Mirza Saleem Baig, General Secretary of Corn Pak Employees' Union in his comments stated that the settlement dated 8-2-1995 expired its natural death on 21-12-1996 and notice under section 26(1) of I.R.O., 1969 dated 1-1-1997 alongwith charter of demands has been rightly and legally served on the management and that there is no need of notice of termination of settlement.
4. Application No, 4A(19)/97-K, under-section 22-A(8)(g) of I.R.O. 1969 read with section 15 of the I.R.O.,. 1909 was filed by Corn Pak Employees Union on 13-2-1997 stating therein that Corn Pak Employees Union is certified Collective Bargaining Agent in the establishment of M/s. Corn Pak Limited. In the past there had been periodical fluctuation in the business and demand and production of the manufactures but since the last budget of 1996 the said position has become tight. The management in an anticipation of submission of fresh charter of demands by the union after the expiry of the settlement dated 8-2-1995 planned to create such conditions that it could influence the union and workers for negotiating a deal for fresh settlement on dictated terms of low level in comparison to previous settlement and without taking the union into confidence terminated employment of 18 workers by issuing termination letters dated 26-11-1996 and terminated services of 20 workers by termination letters dated 3-12-1996 and there was further threat of removal of more workers of their employment. Although there was charter of demands served by both the parties on each other on 1-1-1997 under section 26(1) of I.R.O., 1969 without opening dialogues with the union the management with mala fide intention filed application bearing No,4A(3) of 1997 on 6-1-1997 before this Commission and got prohibitory order, restraining from giving effect to the demand notice of the union. The management also served a lock out notice dated 12-1-1997 in contravention of law. On this lock-out notice conciliation proceedings are being had by conciliator of East Division, Labour, Department. The management unofficially held the talks with the officers of the union on five dates and finally on 29-1-1997 desired the union to execute settlement for three years, on their dictated terms to 'Which the union declined as result whereof the management terminated services of 138 workers by letter dated 6-2-1997, which is illegal lock-out and is an act of unfair labour practice as contemplated under section 15(f) and (i) of the I.R.O., 1969. This has been done by the management to pressurize the union and intimidate the workers and compel the office-bearers of the union to accept their dictated terms to arrive at a settlement of their choice. In this petition application under Regulation 32(2)(c) of N.I.R.C. (P&F)
Regulations, 1973, supported by affidavit of Mirza Saleem Baig, General Secretary of Corn Pak Employees Union was made and the then learned Member of the Commission Mr. Muhammad Hussain Chaudhry had passed interim prohibitory orders directing the management not to effect further retrenchment on any ground and not to pressurize the union to arrive on their own terms.
Operation of notice of termination of 138 workers was also suspended. An application for vacation of stay and modification of the order dated 13-2-1Q97 was filed by Corn Pak Limited, whereupon by order dated 8-3-1997 the lea}ned Member Mr. Muhammad Hussain Chaudhry recalled his order dated 13-2-1997 in relation to suspension of order of termination of 138 retrenched workers and left open to these 138 workers to approach the Labour Court under section 25-A of the I.R.O., 1969. In this petition the comments with preliminary objections were filed by the Corn Pak Limited. According to them the termination of service of 138 workers is not a lock-out, as such it is not an act of unfair labour practice and the application filed by the Corn Pak Employees' Union is not maintainable.
They stated that the union has not filed any certificate of C.B.A. And it cannot spouse the cause of individual workers, who have been terminated, for the reasons due to lack of demands, recession in the market, accumulation of the stock and tight financial position of the company, the management as reorganisation retrenched 18 workers on 26-11-1996, 20 workers on 3-12-1996 arid 138 workers with effect from 11-3-1997. Out of those 18 workers, 16 have taken their full and final- settlement other 20 also have taken their full and final settlement. The management in retrenchment of the workers has observed the principle of 'Last in and First out'.
5. Application No, 4A(55)/97-K was filed by Corn Pak Limited under section 22-A(8)(g) of I.R.O., 1969 read with Regulation 32(2)(c) of N.I.R.C. (P & F) Regulations, 1973 stating therein that Corn Pak Employees' Union claims to be the C.B.A. But till this date it has failed to produce any certificate of C.B.A. Issued to them in prescribed form under Industrial Relations (Sindh) Rules, 1973 by Registrar of Trade Unions, Karachi. Corn Pak Employees Union had served charter of demands on the management on 1-1-1997 and the Corn Pak Limited, therefore, filed application No, 4A(03)197 and this Bench of the Commission restrained the Corn Pak Employees' Union from giving effect the charter of demands or pressurizing the management for the purpose of acceptance of their demands. During the pendency of aforesaid case the management addressed two letters to the Corn Pak Employees Union on 23-2-1997 and 27-2-1997 requesting them to provide management with a copy of certificate of C.B.A. Issued to them by the Registrar, Trade Unions, but till this date the Corn Pak Employees' Union has failed to produce certificate of C.B.A. Arguments were heard by the Honourable Member, N.I.R.C. In case No,4A(03)/97 filed by the management and 4A(19)/97-K filed by the Union and order was passed on 8-3-1997, wherein para. No,5 at page 5 the following observations were made: "I have given my careful consideration to the respective contentions of the parties. Admittedly no copy of the certificate of C.B.A. Has been placed on record nor the union have under-taken to do so. No doubt the decision of the High Court in K.P.. 193 of 1976 in the case of Pan Islamic Steamship Company v. Registrar of Sindh and that of Punjab Labour Appellate Tribunal NLR 1979 Lahore Appellate Tribunal 210 and decision of Mr. M.M. Peerzada the learned Member of this Commission, all are to the effect that the provisional certificate of C.B.A. Is invalid, I refrain from making any comments on this issue at this stage and keep the matter open to be decided at later stage.
Similarly on the issue as to whether notice to terminate the service is required to be given in which specific period is provided for yet even on this issue I refrain from passing any order at this stage, as further legal assistance is required to meet the law at Bar cited on behalf of the company.
' That although the issue as to whether the union is C.B.A. Or otherwise and as to whether this union can serve fresh charter of demands in presence of earlier instrument not terminated in terms of section 40(2) of I.R.O., 1969, being subjudice before the Bench of the Commission in case No,4A(03)97, service of another charter of demand dated 12-3-1997 containing the same demands only changing the date from 1-1-1997 to 12-3-1997 and threat of strike by the union to pressurise the management to accept their demand, is an act of unfair labour practice on the part of Corn Pak Employees Union. Alongwith the main petition, Corn Pak Limited filed application under Regulation 32(2)(c) of N.I.R.C. (P&F) Regulations, 1973 supported by affidavit of Mr. S.H.A. Jazbi their Notified Manager under the Factories Act, 1934 and this Bench of Commission on 17-3-1997 passed the orders to issue notice to Corn Pak Employees Union for their objections on 20-3-1997. On 20-3-1997 Mr. S.P Lodhi, Representative for the Corn Pak Employees Union sought time to file objections on stay application, whereupon this Bench of Commission adjourned the case to 28-3-1997 and passed the orders that meanwhile status quo be maintained. On this petition the comments were filed by the Union that it is not legal requirement to produce C.B.A. Certificate issued by the Registrar of Trade Unions in prescribed form under Industrial Relations Ordinance, 1969 for filing the case by the union. The management had falsely raised the issue of C.B.A. As the union was registered in December, 1969 and it being only registered trade union was deemed to be C.B.A. And after amendment in law in 1975 it was certified to be C.B.A. On 10-6-1976, but on coming into existence of another registered Union namely, Corning Glass Workers Union, secret ballot was held by the -Registrar of Trade Unions on 18-10-76, and having secured more votes, the Corn Pak Employees Union was declared as C.B.A. And the management has never challenged the status of Corn Pak Employees Union as C.B.A. During the past 20 years. During this last 20 years several changes have been effected in the office-bearers of the union and also in the management so it has been difficult to trace out C.B.A. Certificate. The photocopy of the relevant documents are annexed as Annexures A to ZS. Corn Pak Limited by its own cannot conduct is estopped from raising the contention and to approbate and reprobate to suit to its own purpose.
6. Application No,4A(78)/97-K under section 22-A(8)(g) read with section 15 of the I.R.O., 1969 was filed by Corn Pak Employees Union on 8-4-1997 against M/s. Corn Pak Limited and M/s. Central Technology (Pvt.) Limited/stating therein that after expiry of settlement on 31-12-1996, the Corn Pak Employees Union as well as the management of Corn Pak Limited have served notice of charter of demands on each other under section 26(1) of the I.R.O., 1969 on 1-1-1997 and the management has issued notice of lock out on 12-1-1997. On the lock-out notice the proceedings are pendirig before the conciliator. Corn Pak Limited have filed application No,4A(03) 97, Corn Pak Employees Union has filed application 4A(19)97-K, Corn Pak Limited has filed Application 4A(55)/97-K and all these three applications are pending before this Bench of the Commission and the learned Member N.I.R.C. By his order dated 8-3-1997 passed in application 4A(03) of 1997 and 4A(19)/97-K has recalled his order dated 13-2-1997 whereby he had suspended the so-called letters of termination of employment of 138 workers.
' It has been alleged that Mr. S.H.A. Jazbi claiming to be Notified Manager under the Factories Act, 1934 is propagating and threatening to remaining about 300 workers of their removal from employment for the same reasons and grounds as shown in the lock-out notice, as such there is apprehension of removal of other workers as well which is an act of unfair labour practice on the part of Corn Pak Limited's management. M/s. Central Technology (Pvt) Limited is subsidiary/sister company of M/s. Corn Pak Limited and Mr. S.H.A. Jazbi is inducing and pursuading through his agents 138 locked out workers for their fresh employment in vial and ampule department on fresh terms in M/s. Central Technology (Pvt.) Limited. Along with the main petition Corn Pak Employees Union moved application under Regulation 32(2)(c) of N.I.R.C. (P&F) Regulations, 1973 supported by affidavit of Mirza Saleem Baig and this Bench of the Commission passed interim prohibitory order on 8-4-1997 restraining M/s. Corn Pak Limited from removing remaining workers from their employment or threatening them to be removed from the employment. Corn Pak Limited filed reply with preliminary legal objections that the Corn Pak Employees Union is not certified as C.B.A. As no C.B.A. Certificate in form 'S' under Rule 31 of Industrial Relations (Sindh) Rules, 1973 has been issued by the Registrar of Trade Unions to Corn Pak Employees Union. For all the time the Corn Pak Employees Union has been falsely representing to be C.B.A. Although having no certificate of C.B.A.
In prescribed manner issued by Registrar Trade Unions. All the settlements in absence of certificate of C.B.A. Cannof be construed strictly as settlement within the meaning of section 2(XXIV) of I.R.O., 1969. Section 43 of I.R.O., 1969 specifically provides that no industrial dispute shall be deemed to exist unless it is raised in the prescribed manner by the C.B.A. All the previous settlements are therefore not legally binding or enforceable and the benefits obtained under these settlements are liable to be refunded by the union to the company. In law, after promulgation of the Industrial Relations (Sindh) Rules, 1973, there is no concept of recognition of union as C.B.A. Corn Pak Employees' Union has played fraud on the Corn Pak Limited by misrepresenting that it is certified C.B.A., although it does not possess the certificate of C.B.A. From the Registrar of Trade Unions in prescribed form ' S' under Rule 31 of Industrial Relations (Sindh) Rules, 1973. It is vehemently denied that any officer of Corn Pak Limited particularly S.H.A. Jazbi is propagating or threatening the remaining workers of their removal from service. Retrenchment or termination of service is legal right of the employer. Central Technology (Pvt.) Limited is separate legal entity, separately registered under the Companies Ordinance, 1984, separately registered under Factories Act, 1934, with separate Employees Old-Age Benefit No, and separate Social Security Number. Membership of the Corn Pak Employees Union also does not extend to M/s. Central Technology (Pvt.) Limited, which has separate membership in the Chambers of Commerce and Industries and is also separately registered under the Income-tax Department. It is denied that M/s- Central Technology (Pvt.) Limited is subsidiary of M/s. Corn Pak Limited. It is also denied that the management and supervisory officers of M/s. Corn Pak Limited perform duties in M/s. Central Technology (Pvt.)
Limited: Corn Pak Limited is Public Limited Company, whereas Central Technology (Pvt.) Limited is private limited company. There is business agreement between Corn Pak Limited and M/s. Central Technology (Pvt.) Limited to supply technical information and services required by Central Technology (Pvt.) Limited, for which Corn Pak Ltd. Do charge. Premises of .Portion of Plot No, 11 are also leased out on rental basis by Corn Pak Limited to Central Technology (Pvt.) Limited. Other allegations of Corn Pak Employees' Union are also denied. It is stated that due to lack of demand, recession in the market, accumulation of stock, massive input cost increases availability of imported substitute at cheaper rates and tight financial position the Management of Corn Pak Limited decided to reorganize and retrench workers of vial and ampule department on payment of one month salary in lieu of notice. Reply and legal objections were also filed by M/s. Central Technology (Pvt.) Limited, stating that it is separate entity. It is separately registered under Factories Act, 1934, under Employees Old Benefits Institution, under Social Security Institution, under Income Tax Department, under Chambers of Commerce and Industries, under Sales Tax, and it is operating vier separate manufacturing license and has its own premises and boundary verified and approved by Central Excise and relevant registration certificate has been filed. It is stated that there is separate Manager notified under the Factories Act, 1934 and the work has been given to independent contractor, who has control and supervision over the workers and the contractor pay them the salary. None of their employees are members of Corn Pak Employees' Union, as such the Corn Pak Employees' Union has no locus standi to file the case against Central Technology (Pvt.)
Limited. All other allegations of Corn Pak Employees' Union have been denied. - 7. Besides above four cases two filed by the management of Corn Pak Limited and two filed by the Corn Pak Employees' Union, complaint under section 22-C(a) of the I.R.O., 1969 was filed by Mirza Saleem Baig, General Secretary of the Union on 19-2-1997 for violation of the prohibitory orders dated 13-2-1997 by the 'learned Member of this Commission. In this contempt Mr. Vazir Hussain Qureshi, Managing Director and Mr. S.H.A. Jazbi, Manager Personnel and Administration have been made as accused. Mr. Mehmood Abdul Ghani, Advocate for accused in this complaint filed application on 14-3-1997 that the learned Member N.I.R.C. Vide his order dated 8-3-1997 has recalled order dated 13-2-1997 in relation to 138 workers and in the same order the learned Member of the Commission has disposed of this complaint as the notice for contempt earlier issued by this Commission has been recalled.
8. Since all the cases were being heard together as common issue of law and mixed issue of facts and law are involved on 1-4-1997 Mr. S.P. Lodhi; Representative of Corn Pak Employees Union moved an application to summon Registrar of Trade Unions. On his application Mirza Jahangir Azar Baig, Joint Director Labour dealing with the Trade Unions was examined on 3-5-1997 as witness of Corn Pak Employees Union and he was cross-examined by Mr. Mehmood A. Ghani, Advocate for Corn Pak Limited. On behalf of Corn Pak Limited S.H.A. Jazbi, Divisional Manager Personnel and Administration and Notified Manager under the Factories Act, 1934 filed his affidavit-in-evidence and he was cross-examined by Mr..S.P. Lodhi, Representative for the union on 5-5-1997.
9. Along with application moved on 1-4-1997 Mr. S.P. Lodhi representative for Corn Pak Employees Union also placed on record the photo copy of the documents.
10. I have heard the arguments of Mr. S.P. Lodhi, the learned representative for Corn Pak Employees Union and Mr. Mehmood Abdul Ghani, the learned Advocate for Corn Pak Limited and have gone through evidence of Mr. Jahangir Azar, Joint Director Labour examined by the Corn Pak Employees Union and S.H.A. Jazbi examined by the Corn Pak Limited and the documents produced by the Corn Pak Employees Union and the Corn Pak Limited and the case-law cited by them.
11. Following are the three points, which are to be determined; as has been raised in all the above cases:
(i) Whether Corn Pak Employees' Union has been certified as C.B.A. As prescribed by law and holds the status of C.B.A.?
(ii) Whether the period has been agreed and specified in the settlement dated 8-2-1995, as such no notice by either party is required to be served on other party of its intention no longer to be bound by the settlement as envisaged under subsection (2) of section 40 of the I.R.O., 1969?
(iii) Whether termination of 138 workers by Corn Pak Limited is illegal lock out?
12. With regards to first point it is pertinent to note that Corn Pak Employees Union was previously named as Corning Glass Employees Union and by name Corning Glass Employees Union it was registered on 26-12-1969 by the Registrar of Trade Unions, Karachi under Industrial Relations Ordinance, 1969. Before the amendment in section 22 of I.R.O., 1969, the registered trade union, was deemed to be collective bargaining agent in the establishment as contemplated under section 22(1) of the I.R.O., 1969 and the registered trade union was not acquired to obtain certificate from the Registrar of Trade Unions to act as Collective Bargaining Agent in the establishment. It depended only on recognition of the employer. There was an amendment in section 22(1) of I.R.O., 1969 by Act XVI of 1975, whereby the words "be deemed" were substituted by the words "upon an application made in this behalf to be certified by the Registrar in the prescribed manner".
Provisional Certificate of Collective Bargaining Agent was therefore, issued to Corning Glass Employees Union "(now named as Corn Pak Employees Union) by the Registrar of Trade Union Karachi on 15-6-1976 because till that time no rules were framed to prescribe the manner, whereby the certificate of C.B.A. Was to be issued. It shall be advantageous to reproduce subsection (1) of section 22 of I.R.O., 1969, as it stood before the amendment made in this subsection by Act XVI of 1975.
"S. 22(1). Where there is only one registered trade union in a establishment or a group of establishments that trade union shall, if it has as its members not less than one-third of the total number of workmen employed in such establishment or group of establishments be deemed to be Collective Bargaining Agent for such establishment or group."
' After the amendment section 22(1) reads as follows: "S. 22(1). Where there is only one registered trade union in a establishment or a group of establishments that trade union shall, if it has as its members not less than one-third of the total number of workmen employed in such establishment or group of establishments 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."
13. Admittedly there is no application on the record of the Registrar of Trade Unions from Corn Pak Employees' Union for issuing certificate of C.B.A. In prescribed rules as admitted in the cross- examination by Mirza Jahangir Azar Baig, Joint Director Labour. This provisional certificate of Collective Bargaining Agent issued by Registrar, Trade Unions, Karachi to Corning Glass Employees'
Union (now Corn Pak Employees' Union) on 15-6-1976 is also not in prescribed form. It shows that the Corning Glass Employees' Union ( now Corn Pak Employees' Union) was provisionally certified as C.B.A. Subject to the manner to be prescribed under the law and this provisional C.B.A.
Certificate was issued to the Corning Glass Employees' Union (now Corn Pak Employees' Union) under subsection (1) of section 22 of the I.R.O., 1969. It will be advantageous to reproduce the provisional certificate of Collective Bargaining Agent issued by Registrar, Trade Unions, Sindh Karachi on 15-6-1976.
COLLECTIVE BARGAINING AGENT ' Whereas it has been verified that there is one registered trade union namely Corning Glass Employees' Union in the establishment of M/s. Corning Glass Industries, Korangi Karachi and that this union has its members more than one-third of total number of workmen employed therein.
' It is hereby provisionally certified subject to the manners to be prescribed under the law that Corning Glass Employees' Union is Collective Bargaining Agent in M/s. Corning Glass Industries, Korangi, Karachi within the meaning of subsection (1) of section 22 of the I.R.O., 1969 (as amended).
(Sd.)
(S.M. Mutahar) .
Registrar, Trade Unions, Sindh, Karachi
14. In the context of provisional certificate of C.B.A., evidence of Mirza Jahangir Azar Baig, Joint Director Labour is very material. In cross-examination he has admitted that except provisional certificate of C.B.A. Issued in the year 1976, there is no record to show that C.B.A. Certificate in prescribed form was issued to Corn Pak Employees' Union certifying as C.B.A. According to the record no certificate in form 'S' under Rule 31 of Industrial Relations (Sindh) Rules, 1973 was issued in favour of Corn Pak Employees' Union. He has admitted that provisional C.B.A. Certificate provides that it is valid till the rules are framed. In February, 1981 the rules and forms for C.B.A. Certificates were prescribed. After February, 1981 no provisional C.B.A. Certificate was issued nor this provisional certificate was enforceable after February, 1981. He has admitted that since Rules were not framed and they had to face the vacuum, this provisional certificate was innovated. He has stated that there is no application by Corn Pak Employees' Union on the record of Registrar of Trade Unions that the union has number of one-third of total number of workmen employed in the establishment, as such they may be issued C.B.A. Certificate in prescribed form. Mr. S.H.A. Jazbi in his affidavit-in-evidence has stated that the Corn Pak Limited's management has never received the copy of provisional certificate of C.B.A. And the Corn Pak Employees' Union at any stage has shown any certificate of C.B.A. To the management of Corn Pak Limited or had informed to the management of the Corn Pak Limited that they had applied to the Registrar of Trade Unions for certification of C.B.A. The Corn Pak Limited was originally run by foreign executives, who accepted the oral claim of Corn Pak Employees' Union that they are C.B.A. And by misleading and misguiding the employer the Corn Pak Employees' Union had been executing the settlements with the management. Till this date Corn Pak Employees' Union has no certificate of C.B.A.
15. Mr. S.P. Lodhi, the learned Representative for the Corn Pak Employees' Union has contended that the labor laws are to be construed and interpreted as beneficial legislation to the workers. In support of his contention he has placed his reliance on case of Mahmood Hussain v. M/s. United Distributors Limited reported 'in 1974 PLC 66 where labor Appellate Tribunal Sindh at page 67 has observed that the employer cannot be allowed to defeat the claim of the workman on technical point specially when no prejudice is caused to him. Next case cited by him is of Marie Adelaide Leprosy Centre Employees' Union v. Registrar of Trade Unions, Sindh and another reported in PLD 1977 Kar. 210, where the Honorable High Court of Karachi at page 213 has observed that the scheme of the Industrial Relations Ordinance, 1969 is of a beneficial nature. He has cited case of Afzal Stores v. Sindh labor Appellate Tribunal and 4 others reported in PLD 1977 Kar. 756 where it was observed that interpretation of provisions rendering an aggrieved party without remedy such absurdity and hardship to be avoided in interpreting statutes. He has also referred case of Ghulam Mohiuddin v.
Muhammad Bux and another reported in PLD 1979 Lahore 766, where the Honorable Division Bench of the Lahore High Court has observed that the general principle that technicalities should not be permitted to hinder justice and rule of substantial justice. He has also cited case of Hassan Imdad v. Deputy Commissioner/Collector Lasbella reported in PLD 1985 Quetta 1 where the Full Bench of the Honorable High Court of Baluchistan has observed that the Courts are not supposed to pass a wrong order knowingly same quite consciously to be so, just under pressure of certain technicalities, legal formalities could not be allowed to defeat ends of justice unless hurdle offered by such law was insurmountable. He has referred case of Miss Hameeda Khatoon v. M/s. Aspro- Nicholas (Pakistan) Limited, Karachi reported in 1984 PLC 471, where the labor Appellate Tribunal, Sindh has observed that Labour Laws have beeninacted to benefit workers and should be construed liberally in a sense favorable to interest of employee. He has referred case of United Oriental Steamship Company v. Noor Gull reported in 1972 PLC 281 where at page 285 the Sindh Labour Appellate Tribunal observed that rule of interpretation of statutes is that different provisions of an enactment must be so read together that it is beneficial to the subject rather than otherwise.
The Industrial Relations Ordinance has a bias in favor of worker. The different provisions of the enactment must be so read together that it is most beneficial to the worker, On the subject of interpretation of Statutes Mr. S.P. Lodhi, Representative for Union also has placed his reliance on case of Brooke Bond (Pakistan) v. Second Sindh labor Court, Karachi and another reported in PLD 1973 Kar. 189 (D.B. Decision of Honorable High Court of Karachi), Zulfiqar Ali Khan v. Additional Chief Land Commissioner etc. Reported in PLD 1975 Lahore 158 (Decision of D.B. Judgment of Honorable Lahore High Court) and also case of Aslam Pervaiz v. The State reported in PLD 1984 Lahore 204 (judgment of D.B. Of the Honorable Lahore High Court). Mr. S.P. Lodhi, the learned Representative for Corn Pak Employees Union has also placed his reliance on case of Mazdoor Etihad Union v.
Registrar of Trade Unions, Multan Region and 2 others reported in PLD 1977 Lahore 588 (a) Industrial Relations Ordinance (XXIII of 1969)-- ' S. 22(2) and (5).---Secret ballot for determining Collective Bargaining Agent--Provisions of section 22(2) directory and not mandatory--Election held substantially in accordance with relevant election law, fairly and fully participated by all, contesting parties-Non-strict compliance with provisions of section 22(2), (5) not materially affecting result-Held, cannot annual election, in circumstances of case. (Industrial dispute).
19. Mr. S.P. Lodhi, learned Representative for the Corn Pak Employees Union placing his reliance on PLD 1977 Lahore 588 has contended that provisions of section 22(2) are directory and not mandatory, as such the certificate of C.B.A. If not issued by the Registrar, Trade Unions to the succeeding registered trade union in the referendum, the registered trade union so succeeded in the referendum will continue to act as C.B.A. Till that certificate of C.B.A. Is issued by the Registrar, when the same has even been recognized by the employer as provided under section 52 of the I.R.O., 1969. Respectfully I do not agree to this submission of Mr. S.P. Lodhi, the learned Representative for the Corn Pak Employees' Union as this case cited by Mr. S.P. Lodhi reported in PLD 1977 Lahore 588 relates to the period specified in section 22(2) of the I.R.O., 1969 within which the Registrar of Trade Unions has to hold secret ballot for determining the Collective Bargaining Agent, which period provided is within 15 days and in the case reported in PLD 1977 Lahore 588 it was held after 21 days. The authority reported in PLD 1977 Lahore 588 is not applicable to the facts of the present case because in the present case the facts are not that the Registrar has conducted the secret ballot for determination of Collective Bargaining Agent beyond 15 days as required under subsection (2) of section 22 of the I.R.O., 1969, but it is the case where the Corn Pak Employees Union has claimed to be the single union in the Corn Pak Limited but has no certificate of C.B.A. As prescribed under Rule 31 of Industrial Relations (Sindh) Rules, 1973. Moreover, in case there are more than one unions, the Registrar of Trade Unions has to conduct the secret ballot for determination of Collective Bargaining Agent in a manner from subsection (2) to subsection (9) of section 22 of I.R.O., 1969 and the Registrar of Trade Unions is then required to certify the trade union, who has succeeded in the referendum as C.B.A. Under subsection (9)(e) of section 22 of I.R.O., 1969 subject to three provisos. This subsection (9)(e) of section 22 of I.R.O., 1969, is mandatory and not directory, because no registered trade union will have status of C.B.A., till he is certified so as prescribed under the Rules under subsection (9)(e) of section 22 of I.R.O., 1969, which is reproduced:
(9) For the purpose of holding secret ballot to determine the collective bargaining agent, the Registrar shall--
(e) after the conclusion of the count, (certify) the trade union which has received the highest number of votes to be the collective bargaining agent: ' Provided that no trade union shall be (certified) to be the collective bargaining agent for an establishment or group of establishments unless the number of votes received by it is not less than one-third of the total number of workmen employed in such establishment or group: 'Provided further that, if no trade union secures such number of votes in the first poll, a second poll shall be held between the trade unions which secure the two highest numbers of votes in the first poll and the trade union which secures a majority of the votes cast at the second poll shall be certified in the prescribed manner to be the collective bargaining agent: ' Provided further that, if the number of votes secured by two or more trade unions securing the highest number of votes is equal, further poll shall be held between them until one of them secures a majority of the votes cast at such further poll.)
20. Mr. S.P. Lodhi, the learned representative for the Corn Pak Employees' Union at first instance contended that the Corn Pak Employees Union was provisionally certified as C.B.A. By Registrar of Trade Unions, Karachi on 15-6-1976 and this provisionally certificate of collective bargaining agent under section 22(1) of I.R.O., 1969 was issued, because till then no Rules were prescribed. After evidence of Mirza Jahangir Azar Baig was recorded on 3-5-1997 and from the record brought by him, it transpired that there were some documents to show that referendum was held on 18-10- 1972 between Corning Glass Employees Union (now Corn Pak Employees Union) and Corning Glass Workers' Union on 18-10-1976. Mr. S.P. Lodhi, learned representative for Corn Pak Employees Union raised the contention that Corning Glass Employees Union (now Corn Pak Employees Union) succeeded in the referendum, as such provisional certificate of C.B.A. Might have been issued by the Registrar of Trade Unions, Sindh Karachi to the Corning Glass Employees Union (now Corn Pak Employees' Union), as result of succeeding in the referendum under subsection (2) of section 22 of the I.R.O., 1969, which has been lost. He has conceded that after the referendum the provisional C.B.A. Certificate dated 15-6-1976 has lost its validity. No document has been produced by the Corn Pak Employees' Union to show that Corning Glass Employees Union (now Corn Pak Employees'
Union) had succeeded in the referendum and any certificate of D. Was issued to the Corning Glass Employees Union (now Corn Pak Employees Union) by the Registrar of Trade Unions under subsection (2) of section 22 of the I.R.O., 1969. In fact in the record brought by Mirza Jahangir Azar Baig, Joint Director Labor no such document could be traced out despite the entire record was examined by Mr. S.P. Lodhi, the representative of Corn Pak Employees Union, while examining Mirza Jahangir Azar Baig, Joint Director labor. Jahangir Azar Baig, Joint Director labor in his cross- examination stated that according to the record only provisional certificate of C.B.A. Dated 15-6- 1976 was issued to the Corning Glass Employees Union (now Corn Pak Employees Union), which is under section 22(1) of Industrial Relations Ordinance, 1969, thereafter no certificate in form S' of Rule 31 of Industrial Relations (Sindh) Rules, 1973 has been issued in favor of Corn Pak Employees Union.
He also stated that there is no record available with the Registrar of Trade Unions to show that any referendum for C.B.A. By secret ballot for determination of C.B.A., except some letters written by the union. He admitted that till this date Corn Pak Employees Union has not surrendered provisional certificate of C.B.A. He admitted that validity of provisional certificate of C.B.A. Issued on 15-6-1976 under section 22(1) of the I.R.O., 1969 was till the rules were named. In February, 1981 the Rules were framed and thereafter this provisional certificate of C.B.A. Has no validity. He also stated that there is no application pending from Corn Pak Employees Union for issuing certificate of C.B.A. In the prescribed rules and the Corn Pak Employees Union has never filed any case against Registrar of Trade Unions for not issuing certificate of C.B.A. To them. There is no application by Corn Pak Employees Union that they have one-third members of total number of workmen employed in Corn Pak Limited, as such they may be issued C.B.A. Certificate. He has admitted that issuance of provisional C.B.A. Certificate is innovation of Registrar of Trade Unions and he does not know if this innovation of C.B.A. Certificate by the Registrar of Trade Unions has any legal sanction. There is nothing on record to show that any secret ballot was held for the referendum and that any certificate was issued to any union after alleged referendum. There is nothing on the record to show that Corn Pak Employees Union has ever surrendered the provisional certificate. He has brought the entire record pertaining to Corn Pak Employees Union and no record is left behind of referendum or otherwise. Mirza Jahangir Azar Baig was examined by the Corn Pak Employees Union and was not declared hostile by the Corn Pak Employees Union. He being a public servant and independent witness, having no any bias against Corn Pak Employees Union and, his evidence is worth credible. His evidence has shattered the contention raised by Mr. S.P. Lodhi, the learned representative for Corn Pak Employees Union. From this evidence it appears that in case ' any referendum was held, not even provisional certificate of C.B,A. Under section 22(2) of I.R.O., 1969 was issued to Corning Glass Employees Union (now Corn Pak Employees Union), may be for the reason that Corning Glass Employees Union if succeeded in the secret ballot, did not secure one third votes of the total number of workmen employed in the establishment of Corn Pak Limited.
In case of referendum the Registrar of Trade Unions has to certify the trade union, which has received the highest number of votes to be collective bargaining agent, when it receives votes not less than one third of the total number of workmen employee in the establishment or group as envisaged in first proviso of section 22(9)(e) of I.R.O., 1969.
21. Mr. Mehmood Abdul Ghani,i the learned Advocate for Corn Pak Limited has contended that the Registrar of Trade Unions is not competent to issue provisional certificate of C.B.A. Reliance has been placed on unreported decision of Honorable High Courts of .Sindh and Baluchistan at Karachi in C.P. No, 193 of 1976 Pan Islamic Steamship Company Ltd. v. Registrar of Trade Unions, Sindh and Karachi Portship, wherein the Registrar had issued the provisional certificate of C.B.A. To the union in the words "it is hereby provisionally certified subject to the manner to be prescribed under the law that Karachi Port ship Repairs Watchman and Tally Workers' Union is collective bargaining agent in the establishment (list enclosed) within the meaning of subsection (1) of section 22 of I.R.O., 1969 (as *mended). In that case the Honorable High Court of Karachi Sindh and Baluchistan held that there is no provision in law for declaring provisionally the collective bargaining agent. He has also placed his reliance on case of Awailin Silk Mills Workers' Union, Karachi v. Their Management reported in 1977 PLC 427 where the Labor Appellate Tribunal Sindh in para. No, 5 of the decision has observed: "Taking up the first ground with regard to the necessity of the certificate from the Registrar reference be made to section 22 of I.R.O., 1969. It requires that where there is only one registered Trade Union in an establishment or group of establishments that Trade Union shall upon an application made in its behalf be certified by the Registrar in prescribed' manner to be C.B.A. For such establishment or group. Admittedly no such certificate has been obtained from the Registrar.
Consequently, the union could not be treated to be C.B.A. And was incompetent to raise the dispute. In order to meet this legal objection the learned representative for the Union relied upon section 52 of the I.R.O., 1969 which obviated the necessity of requiring certificate in case the registered Trade Union had been recognized by the employer. In this connection it was pointed out that previously the settlement had been reached and therefore, it could be presumed that the employer had recognized the Trade Union and so the dispute could be raised by the Union. I find no force in this contention in view of the amendments which had been brought in sections 22 and 52 of I.R.O. Simultaneously in October, 1974.
' Section 22 prior to the amendment did not require any such certificate and if there was a single Trade Union it could be deemed to be C.B.A. Section 22 as stood prior to the amendment required that a registered Trade Union, if recognised by the employer, could act as Collective Bargaining Agent, till it was ascertained as such. In fact this section was applicable only when there were more than one registered Trade Unions and a secret ballot had to be held to ascertain as to which of the Unions could be treated to be 'Collective Bargaining Agent'. This section had no application in case there was only one registered Union in the establishment or group of establishments. Since by amendment the certificate from the Registrar become necessary even in case of single registered Trade Union, section 52 was simultaneously amended and it was laid down that only a 'Collective Bargaining Agent' as certified by the Registrar of Trade Unions could function as such. This was intended to meet the contingency when an application had been made to the Registrar after the amendment of section 22 and it was still pending. In the present case this situation could not arise as the amendment was made in October, 1974 while the present dispute was raised in June, 1975 and no application by the Union' for securing the certificate under section 22 was made. In the absence of the application the benefit of section 52 could not be availed of. It, therefore, follows that the appellant Union could not be treated to be C.B.A. And was incompetent to raise the dispute.
22. Mr. Mehmood Abdul Ghani, learned Advocate for Corn Pak Limited has also placed his reliance on case of Kaleem Rabbani v. National Bank of Pakistan Workers' Union 1980 PLC 188, where Labour Appellate Tribunal Punjab in its judgment, in para. 8 have observed as follows: "Now adverting to the next objection that the National Bank of Pakistan Employees' Union, Central Circle, Punjab, Lahore, was neither a validity registered Union, nor it had been certified as C.B.A. I find that there is a certificate dated 20th November, 1967 issued by the Registrar, whereby the National Bank of Pakistan Employees' Union, Central Circle Punjab, Lahore, was provisionally certified as C.B.A. There is no provision in the law for the issuance of the provisional certificate. The expression provisional means temporary or ad hoc. The word "provisional" is not a technical term. It has, therefore, to be construed according to its dictionary meaning. According to Oxford Dictionary, the word "provisional" means for the time being temporary. In the case, Muhammad Iqbal Khan Niazi v. Vice-Chancellor, University of Punjab, etc. (PLD 1979 SC 1), it was held that, when there is no ambiguity, the words have to be construed in their ordinary dictionary meaning. The C.B.A.
Certificate is issued under the Punjab Industrial Rules, 1973 and has to be in form "S". The C.B.A.
Certificate issued by the Registrar to the National Bank of Pakistan Employees' Union, was not in the prescribed form and thus would seem to be of no value. As a matter of fact, the Registrar had no Authority to issue such a C.B.A. Certificate as the law-makes no provision for the determination of C.B.A. Provisionally. It is well-established principle of law that where a power is given to a particular person to do a certain thing in a certain way, the thing must be done in that way or not at all, other methods of performance are necessarily forbidden. I am fortified in this view by the judgment in this case Ghulam Abbas v. State reported in PLD 1968 Lah.
101. In the case, Col. Bashir Hussain and 10 others v. Land Acquisition Collector, Lahore Improvement Trust, Lahore and others reported in PLD 1970 Lah. 321 it was held: "it is an accepted principle of law that if a statute requires something to be done and also prescribes the mode for doing it the requirements of law can be fulfilled by the act, in the manner, prescribed". In the case, Nazir Ahmed v. King Emperor AIR 1936 P.C. 253 it was observed. The rule which applies is different and not a less well-recognized rule, namely, that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all other methods of performance are necessarily forbidden. In the case, M. Sharif v. Sh. Muhammad Rafique, Settlement and Rehabilitation Commissioner, Lahore and 2 others reported in PLD 1968 Lah. 253 it was observed "That when a particular act is directed by the Legislature to be done in a particular manner it should be done by that manner alone. In the case Chairman, Evacuee Property Trust, West Pakistan, Lahore v.
Muhammad Din and another reported in PLD 1971 Lah. 217 it was held: "whenever a statute limits a thing to be done in a particular manner, it necessarily includes in itself negative viz. That the thing shall not be done otherwise."
23. Similar question had arisen in case No, 4A(47)/97, General Tyre & Rubber Co. Of Pakistan Limited v. General Tyre & Rubber Employees Union before Mr. Agha Saleem Khursheed, Member, N.I.R.C., who in his order dated 19-3-1997 has held that the union cannot claim to be C.B.A. In the absence of C.B.A. Certificate in the prescribed manner.
24. Mr. Mehmood Abdul Ghani, the learned Advocate for the Corn Pak Limited has contended that when law prescribes to do something in some prescribed manners it shall be done in that manner and not in some other, manner. Provision of certifying a registered trade union as C.B.A. By the Registrar of Trade Unions under section 22(1) or under section 22(2) of the Industrial Relations Ordinance, 1969 is mandatory and not directory; as such the Corn Pak Employees' Union, not possessing the certificate of C.B.A. In the prescribed form S' under Rule 31 of Industrial Relations (Sindh) Rules, 1973, is not deemed to be C.B.A. In support of his contention he has placed his reliance on case of Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore and 3 others reported in-PLD 1971 SC 61 where the Full Bench of the Honorable Supreme Court of Pakistan has held that it is well-settled that the neglect of the plain requirements of statutory enactment, which prescribes how something is to be done, will invalidate the thing being done in some other manner if the enactment is absolute but not if it is merely directory. In case of Sultan Mawji and 3 others v.
Federation of Pakistan, Chambers of Commerce Industries and 3 others reported in PLD 1982 SC 174 where the Full Bench of the Honorable Supreme Court has held that where statutes laid down the manner of being a thing done the same should be done in such manner and not in other manners.
In case of Ghulam Muhammad Memon v. Shabbir Ahmed, Presiding Officer, Third Sindh Labor Court, Karachi reported in 1993 PLC 349 it was held by the Honorable Karachi High Court that it is established principle of interpretation of statute that each word of Statute is to be given effect to and so also it is established rule of law that if something is required to be done in particular manner it should be done in such manner and not in other manner. In case of Miss F. Dubash v.
Sindh Labour Appellate Tribunal, Karachi and others reported in PLD 1978 Kar. 302 the Division Bench of the Honorable High Court at page 304 has held that a Court is not empowered while interpreting the provision of the Statute to remove anomalies in the Statute and it is well laid down that the Court has to give effect to the plain meaning of the Statute irrespective of the hardship that might ensue in doing so. We are not here to question the wisdom of the legislature in enacting a particular provision of law but the only function of the Court in this regard is to discover the true meaning and intendment of the Statute. Mr. Mehmood Abdul Ghani, learned Advocate for Corn Pak'
Limited has contended that certificate of. C.B.A. Shall be issued to the registered trade union a prescribed in form ' S' under Rule 31 of Industrial Relations (Sindh) Rules, 1973 and if it is issued in any other manner, it is not C.B.A. Certificate in eyes of law. On same analogy he has cited decision of Labor Appellate Tribunal, Punjab in case of Staff Union v. M/s. International General Insurance Company of Pakistan, Lahore reported in 1976 PLC 137, where at page 142 it has been observed "According to S. 43 of I.R.O., 1969, no industrial dispute shall be deemed to exist unless it has been raised in the prescribed manner by the collective bargaining agent or any employer. According to section 2(xix), of the Ordinance the expression "prescribed" means prescribed by rules. Under Rule 75 of the Punjab Industrial Relations Rules, 1973, the strike notice has to be given in form 'U', wherein it has been mentioned that the copies of strike notice have to be sent to:
(i) The conciliator of the area concerned,
(ii) The Director of Labor Welfare,
(iii) The Deputy Commissioner,
(iv) The Presiding Officer of Labor Court concerned. From the perusal of the strike notice Exh. R/5, I find that there is no mention, that copies were sent to the aforementioned persons. Thus it is clear that the industrial dispute has not been raised in the prescribed manner and therefore it is deemed to be non-existent, as is laid down under section 43 of the Ordinance. Mr. Mehmood Abdul Ghani, the learned Advocate for the Corn Pak Limited has contended that mere recognition or acceptance by Corn Pak Limited will not give status of C.B.A. To Corn Pak employees' Union, even otherwise this recognition and acceptance so claimed by Corn Pak Employees Union was due to his concealment and misrepresentation before the Corn Pak Limited Management, who bona fidely was believing that Corn Pak Employees' Union must be possessing certificate of C.B.A. In the prescribed manner. He has contended that there is no estoppel against the statutes, when the Statute lays down under section 22(1) and (2) of Industrial Relations Ordinance, 1969, for issuance of certificate of C.B.A. To the registered trade union by the Registrar of Trade Union in form ' S' under Rule 31 of Industrial Relations (Sindh) Rules, 1973, then the registered trade union if it is single in the establishment shall possess such certificate under subsection (1) of. Section 22 of I.R.O. 1969; and in case there are more than one registered trade unions in the establishment, the registered trade union, Who succeeds in the secret ballot in referendum and qualifies by having one-third votes in his favor of the total number, of workmen in the establishment, shall have such certificate of C.B.A.
Under section 22(2) of I.R.O., 1969. In support of his contention that there can be no estoppel against Statute Mr. Mehmood A. Ghani, the learned Advocate for Corn Pak Limited has cited case of Mst.
Shahar Bano v. Quadria and another reported in 1986 SCMR 1727. Mr. Mehmood Abdul Ghani, the learned Advocate for Corn Pak Limited has contended that Labor Court, N.I.R.C. Or even the Honourable High Court cannot declare any trade union as C.B.A. And it is the sole function and power of the Registrar of Trade Unions to certify any registered trade union to be C.B.A. In support of his contention he has placed reliance on case of Managing Director, Ghulam Hosiery No,1 v.
Registrar of Trade Unions, Sargodha Region, Lyallpur and another reported in '1976 PLC 889(2) where the Third Labour Court Punjab has held that the Labor Court is not competent to interfere into the jurisdiction of the Registrar. It is the sole function of the Registrar to issue or to refuse issuance of a certificate, declaring any Union as C.B.A. This power is given to the Registrar under section 22(1) of the Industrial Relations Ordinance, 1969. There is nothing in the provisions of this section that the Labor Court is competent to interfere into the duties of the Registrar. Moreover there can be one Trade Union in an establishment or group of establishments, even then there can be one Trade Union, it can lie registered and the same can be declared as C.B.A. By the Registrar."
On this proposition Mr. Mehmood A. Ghani, the learned Advocate for Corn Pak Limited has also relied upon case of N.D.F.C. Staff Union v. Registrar of Trade Unions and others reported in 1991 PLC 841, where Honourable High Court of Karachi has held that it is exclusive jurisdiction of the Registrar to take the decision whether a trade union qualifies for registration or not and this Court cannot enter into such enquiry, Mr. Mehmood A. Ghani, the learned Advocate for Corn Pak Limited has contended that same analogy will apply for certifying any registered trade union as C.B.A., which only can be done by the Registrar of Trade Unions under subsection (1) or subsection (2) of section 22 of I.R.O., 1969. He has contended that the Court cannot construe even a beneficial statute in such a way that may violate its provisions. In support of his contention he has placed his reliance on case of Shaheen Airport Services v. Sindh Employees Social Security Institution reported in 1994 SCMR 881 where the Honourable Full Bench of Supreme Court at page 887 has held that there cannot be any cavil with the proposition that the Court cannot construe even a beneficial statute in such a way that it may violate its provisions nor the Court can place a beneficial interpretation on a provision contrary to its language merely on the ground that its literal constructions will cause hardship or would not be beneficial to the class for whose benefits the statutes in question was enacted. Mr. Mehmood A. Ghani, the learned Advocate for the Corn Pak Limited has contended that the provisional certificate of C.B.A. Dated 15-6-1976 is no certificate of C.B.A. In the eyes of law, and it also lost its validity. Assuming if there was referendum on 18-10-1976, thereafter there is nothing on the record to show that Corn Pak Employees' Union won the referendum and even provisional certificate was issued to it under subsection (2) of section 22 of the I.R.O., 1969 by the Registrar of Trade Unions, Sindh, and that after the Rules were framed in February, 1981 the Corn Pak Employees'
Union has been issued certificate in form 'S' as prescribed under Rule 31 of Industrial Relations (Sindh) Rules, 1973.
25. Mr. Mehmood Abdul Ghani, the learned Advocate for the Corn Pak Limited has contended that registered trade union can be certified as collective bargaining agent by the Registrar of Trade Unions under section 22(2) of the I.R.O., 1969, when the registered trade union succeeds in the referendum and secures the votes not less than one-third of the total number of workmen employed in the establishment. In case no trade union secures such number of votes, the trade union is not to be issued C.B.A. Certificate. In support of his contention he has placed his reliance on case of K.E.S.C. Limited Democratic Mazdoor Union v. N.I.R.C. Etc. Reported in 1988 PLC 286, where the Divisional Bench of the Honorable Karachi High Court at page 266 has held that the basic requirement of the law is that a successful trade union entitled to C.B.A. Certificate must secure not less than one-third of the total number of workmen employed in an establishment. As this requirement is lacking therefore it would be considered that the certificate has been issued in violation of law. As such the C.B.A. Certificate is nonexistent in the eye of law. Mr. Mehmood Abdul Ghani, the learned Advocate for the Corn Pak Limited has contended that even in the present case no such C.B.A. Certificate has been issued to the Corn Pak Employees Union by the Registrar of Trade Unions. Next it has been argued by Mr. Mehmood Abdul Ghani, the learned Advocate for the Corn Pak Limited that there is all probability to believe that if there was any referendum on 18-10- 1976, either the Corn Employees Union `did not succeed in the said referendum or if succeeded did not secure the one-third votes of total number of workmen employed in the establishment, as such it was not declared as C.B.A. By the Registrar of Trade Unions, Sindh Karachi under the provisions of section 22(9)(e) of Industrial Relations Ordinance, 1969. In support of his contention he has cited case of Karachi Warehouse and Carriers Workers' Union v. Pakistan Warehouse Carriers Workers'
Union and 3 others reported in 1978 PLC 554 (Judgment of Honourable High Court of Karachi (Placitum B).
(b) Industrial Relations Ordinance (XXIII of 1969)--Section 22(9)(e)--- Collective Bargaining Agent- --Declaration-Union not securing more than one-third of votes of total number of workmen employed in establishment--Held: not permissible in circumstances, to certify such Union as Collective Bargaining Agent.
' He has also contended that in the proceedings for certifying the Trade Union as Collective Bargaining Agent presence of the employer and his participation before the Registrar of Trade Unions is necessary. S.H.A. Jazbi Divisional Manager, Personnel and Administration and Notified Managef under Factories Act, 1934 of Corn Pak Limited in his affidavit-in-evidence has stated that at no stage the Registrar of Trade Unions had asked the management to provide list of workers and other detail for the purpose of determination of C.B.A. No letter was issued by the Registrar of Trade Union to the management intimating about holding of any secret ballot for the purpose of determination of C.B.A. In cross-examination S.H.A. Jazbi has repelled the suggestion put to him that any referendum was held in 1976 and Corn Pak Employees Union had succeeded in referendum and was certified as C.B.A. By referendum, and this fact is in knowledge of Sub alley and Mr. Qureshi. Mr. Mehmood Abdul Ghani, the learned Advocate for Corn Pak Limited has contended that from the record available with the Registrar of Trade Unions also, no document has come on the record of these cases, that Corn Pak Employees Union had succeeded in secret ballot in referendum and was certified as collective bargaining agent by the Registrar of Trade Unions, Sindh Karachi i. In support of his contention he has referred judgment of Full Bench of N.I.R.C. In case of Pakistan Warehouse Carriers Workers' Union v. The Ben--; of National Industrial Relations Commission, Islamabad and 10 others reported in 1988 PLC 890 (Placitum B).
(b) Industrial Relations Ordinance (XXIII of 1969)---Section 22(1)---Collective Bargaining Agent Certificate grant of--Parties to proceedings--Grant of C.B.A. Certificate in favour of a Union does concern the employer inasmuch as he is compelled under the law to negotiate with the C.B.A. And not with any other Union and a Union can be certified as C.B.A. Only for those branches of the organisation in which it has membership--Ascertainment whether such condition was fulfilled by the Union could only be properly made in presence of the employer--Claim by a union to be possessed of required membership of minimum one-third of total number of workmen in the establishment or membership in each and every establishment of organization could hardly be effectively or safely ascertained in absence of the employer--, held, was a proper party and sought to have been impleaded."
' Next it has been argued by Mr. Mehmood Abdul Ghani, the learned Advocate for Corn Pak Limited that recognition or acceptance due to misstatement and concealment of the fact by the Corn Pak Employees' Union, will not by itself confer Corn Pak Employees' Union status of C.B.A. On this analogy he has cited Division Bench judgment of the Honourable High Court of Karachi in case of Mumtaz Hassan Khan v. Sindh Labour Appellate Tribunal etc. Reported in 1984 PLC 1353 where at page 172 it was held that if the petitioner was not a workman and not entitled to relief on account of dismissal from the service under the relevant labour laws, the mere fact that he had been treated as workman by the respondent No, 3 could not converted his status of non-workman into a workman.
Mr. Mehmood Abdul Ghani, the learned Advocate for the Corn Pak Limited has contended that there is no provision in the 1.R.O., 1969 to issue any provisional certificate of C.B.A. The C.B.A.
Certificate only can be issued by the Registrar in form 'S' under Rule 31 of Industrial Relations (Sindh) Rules, 1973, which obviously has not been issued to Corn Pak Employees' Union. Any act done contrary as provided by the law will be deemed to be illegal. In support of his contention he has placed his reliance on case of Industrial Development Bank of Pakistan v. Allied Bank of Pakistan and another reported in PLD 1986 Supreme Court 74 Full Bench judgment of the Honourable Supreme Court (Placitum C).
(c) Interpretation of statutes--Where an Act creates an obligation and enforces performance in specific manner, general rule, held, would be that performance could not be enforced in any other manner.
' He has also cited case of Chaudhry Shujaat Hussain v. The State Full Bench judgment of Honourable Supreme Court of Pakistan reported in 1995 SCMR 1249, where it was observed that rule is that where any provision couched in negative language requires an act to be done in a particular manner then it should be done in a manner as required by the Statute, otherwise such act would be illegal.
26. Having given my anxious consideration to the arguments of Mr. S.P. Lodhi, the learned Representative for Corn Pak Employees' Union and Mr. Mehmood Abdul Ghani, the learned Advocate for Corn Pak Limited and cases cited by them, I am of the considered view that Corn Pak Employees' Union, having no certificate of C.B.A. Issued to it by the Registrar of Trade Unions in the prescribed form 'S' under Rule 31 of An Industrial Relations (Sindh) Rules, 1973, shall have no status of C.B.A. And it cannot, therefore, exercise the function or the rights, which are conferred by the Industrial Relations Ordinance, 1969.
27. Now I shall proceed to consider second point whether the period has been agreed and specified in the settlement dated 8-2-1995, as such no notice by either party is required to be served on other party of its intention no longer to be bound by the settlement as envisaged under subsection (2) of section 40 of I.R.O., 1969.
28. Mr. S.P. Lodhi, the learned Representative for the Corn Pak Employees' Union has contended that in the settlement dated 8-2-1995 it is mentioned that the settlement will be operative with effect from 1-1-1995 up to 31-12-1996, as such it expires on 31-12-1996 and no notice is required to be served by either party, because the service of notice under section 40(2) of I.R.O. 1969 is required to be served by either party on the other party, when no such period is agreed upon in the settlement.
In support of his contention he has placed his reliance on case of Workers' Union C.B.A. (Regd.)
Shakarganj Mills, Jhang v. Shakarganj Mills Limited reported in 1990 PLC 686, where the Labour Appellate Tribunal Punjab observed that settlements comes to an end on expiry of period agreed to by parties but benefits drived from settlement continues till parties enter into negotiations and reach a conclusion. He has also cited case of Elite Publishers Employees' Union through General Secretary v. Elite Publishers (Pvt.) Limited reported in 1990 PLC 650, where the Labour Appellate Tribunal Sindh has observed. That settlement arrived at between the parties is a settlement within definition of I.R.O., 1969 and is binding. If no date of validity is shown in the Settlement it would be governed by section 40(2) of I.R.O., 1969. On the other hand Mr. Mehmood Abdul Ghani, the learned Advocate for Corn Pak Limited has contended that in para. No, 17 of the settlement dated 8-2-1995 it has been mentioned that the settlement will come into operation with effect from 1-1-1995 and shall be valid and binding on the parties at least up to 31-12-1996. He has contended that it is not mentioned in the settlement dated 8-2-1995 that it will expire on 31-12-1996. Word has been used "at least", which purports to mean that the settlement will continue to operate even after 31-12-1996 and no future period has been specified, till which it will operate, as such the notice is necessary to be served by either party on other party of its intention no longer to be bound by the settlement, as contemplated under section 40(2) of I.R.O., 1969 and any charter of demands submitted by Corn Pak Employees' Union even having no status of C.B.A., will have no validity. He has contended that the word "at least" has been defined in Chambers' 20th Century Dictionary means "at any rate". The word "at least" has been defined in Valentines Law Dictionary. 'A phrase which, as a designation of a period of time by days running after a stated date or event, may mean so many clear days.
Boring v. Boring, 155 Kan 99, 122 P2d 743. He has also shown definition of "at least" in Biswas Encyclopedic Law Dictionary. "At least". When so many days at least are said, the two terminal days must be excluded, Rambharoseial v. State of Madhya Pradesh, AIR 1955 Nag. 35; ILR 1955 Nag.
1. 'At least' means not less than. Anokhamal v. Chief Panchayat Officer, ILR (1956) 6 Raj. 1044; AIR 1957 Raj.
388. Mr. Mehmood Abdul Ghani, the learned Advocate for Corn Pak Limited has contended that in none of the settlements executed before this settlement dated 8-2-1995 the word "at least" was used. The words in previous settlements used were that it will expire on specified date. In a settlement executed on 25-3-1992 in para. 20 it was mentioned that this settlement shall be effective with effect from 1-1-1992 for a period of three years and shall remain in force and binding on both the -parties upto and including 31-12-1994. In previous settlements also exactly the same words have been used and nowhere the word "at least" has been used. The Court, therefore, has to see what the parties have actually said in the deed and not that what the parties thought that they were saying. He has referred page 42 of interpretation of document by Muhammad Anwar Chaudhry. The relevant part is "when matter is reduced to a document, the Court is not concerned with what the parties thought they were saying but with what they actually said and the writing is the only evidence of that (AIR 1946 Nagpur 152)." He has also cited the relevant part regarding interpretation of the document at page 21 of the Book, Documents and Deeds by Charles Odgers": "So with all the above mentioned preliminaries settled the Court is faced with the question what does the deed mean? It must be noticed that this is not necessarily the same as "what did the parties intend when they executed the document?" They are presumed to have intended to say that which they have in fact said, so their words as they stand must be construed. The question is, not what did the parties intend to say? - that is precluded by the presumption that they have said what they intended to say. The question to be solved, is, what have they said? What meaning is to be attached to the expressions they have used?"
' Mr. Mehmood Abdul Ghani, the learned Advocate for Corn Pak Limited has contended that the settlement is operative even after 31-12-1996, because the word used is "at least" and it donates that it will continue thereafter also till notice is served by either party under section 40(2) of the I.R.O., 1969, and no fresh demand can be raised during the subsistence of the settlement. In support of his contention he has placed reliance of case of Workers' Union v. Hussain Sugar Mills reported in 1984 PLC 129 (placitum (a) (judgment of Labour Appellate Tribunal Punjab).
"(a) Industrial Relations Ordinance (XXIII of 1969).---Section 40-Settlement--Requirement of notice of termination--Applicable to both kinds of settlements i,e, the one in which period agreed upon between parties at time of settlement and that in which such period not so agreed upon and period thereof be one year--Period mentioned in settlement one year--Such settlement, held, would remain effective after expiry of its period of one year till expiry of two months from date on which either party informs other in writing of its intention of no longer to be bound by same."
29. I find force in contention raised by the learned Advocate for Corn Pak Limited Mr. Mehmood Abdul Ghani. In all the previous settlements the parties have been mentioning that the settlement will end on certain date specified therein but in settlement dated 8-2-1995 the word "at least" has been used. It can clearly be deduced that the settlement was to continue even after 31-12-1996, as it appears was the intention of the parties at the time of executing the settlement, otherwise they would have not used the word "at least" and would have drafted the settlement in the words as they used to draft previously. Till what date this settlement dated 8-2-1995 will continue, no date is specified in the settlement, as such there appears weight in the arguments of Mr. Mehmood Abdul Ghani, learned Advocate for Corn Pak Limited that notice by either party to other party showing its intention no longer to be bound by the settlement is required as contemplated under section 40(2) of the I.R.O., 1969. Even otherwise I have held above in my finding on point-I that Corn Pak Employees' Union has no status of C.B.A. And for this reason also there shall be no validity to the fresh charter of demand served by Corn Pak Employees' Union on the Management of Corn Pak Limited on 1-1-1997 subject-matter of case No, 4A(03) of 1997 and also charter of demand dated 12-3-1997 served by Corn Pak Employees' Union on the Management of Corn Pak Limited subject- matter of Case No,4A(55)/97-K.
30. Now I shall proceed to consider third point whether termination of 138 workers by Corn Pak Limited is illegal lockout?
31. This point was argued by the parties on stay application in Case No,4A(19)/97-K before Mr. Muhammad Hussain Chaudhry, the then learned Member of this Bench of the Commission and by his order dated 8-3-1997, recalling his order dated 13-2-1997, whereby he had suspended the termination of 138 workers, he observed that it is open to all these 138 workers to approach the Labour Court under section 25-A of the I.R.O., 1969, whereupon the learned Labour Court will decide their case after recording the evidence and hearing the viewpoint of both the parties. On this point the parties have also advanced their arguments before me. Mr. S.P. Lodhi, the learned Representative for the Corn Pak Employees' Union has contended that management of Corn Pak Limited has served notice of lockout and then terminated the services of 138 workers on the ground shown in the lockout notice and termination letters are the same. There is absolute refusal by the Corn Pak Limited to continue to employ these 138 workers, as such the termination of these 138 workers falls within the definition of lockout, as is defined under section 2(xvi) of the I.R.O., 1969. He has contended that these 138 retrenched workers are now being pursuaded by the officers of the Corn Pak Limited, particularly S.H.A. Jazbi to have fresh appointment in M/s. Central Technology (Pvt.) Limited, which is sister concern of Corn Pak Limited. The termination of these 138 workers is, therefore, illegal lockout and Corn Pak Employees' Union, which is C.B.A. In the establishment of Corn Pak Limited, has right to file the application of unfair labor practice against Corn Pak Limited.
He has contended that regarding this lockout notice, conciliation proceedings are also pending before the Assistant Director Labor, East Division, Karachi. In support of his contention Mr. S.P. Lodhi, learned Representative for Corn Pak Employees' Union has placed his reliance on case of Evergreen Industries v. Assistant Director Labor, West Division and 2 others reported in 1990 PLC 750, where the Honorable Karachi High Court observed that "to bring a situation within the definition of "illegal lockout" it has to be seen whether the lockout was in connection with an industrial dispute or same was intended for the purpose of compelling workmen employed to accept certain terms and conditions or affecting their employment.
32. Mr. Mehmood A. Ghani, the learned Advocate for the Corn Pak Limited has contended that management has effected retrenchment of 138 workers on 6-2-1997 on principle of 'Last-come First-go'. Letter of termination has been received by all the 138 retrenched workers. The petition under section 22-A(8)(g) of the I.R.O., 1969 read with Regulation 32(2)(c) of N.I.R.C. (P&F)
Regulations, 1973 was filed by the Corn Pak Employees Union on 13-2-1997, challenging the termination of these 138 workers as illegal lockout and an act of unfair labour practice on the part of management. This order of termination of 138 workers was suspended by Mr. Muhammad Hussain Chaudhry, the then learned Member of this Bench of the Commission by his order dated 13-2-1997. Since the termination of these 138 retrenched workers had already taken effect, having issued termination letters to them on 6-2-1997 and received by them, as such the Commission could not pass the orders to suspend the termination letters dated 6-2-1997. Corn Pak Employees'
Union, possessing no C.B.A. Certificate, also has no locus standi to file the petition relating to these 138 retrenched workers before this Bench of the Commission. The petition, therefore, is not maintainable. Mr. Mehmood Abdul Ghani, the learned Advocate for the Corn Pak Limited has contended that after hearing both the parties Mr. Muhammad Hussain Chaudhry, the then learned Member by his order dated 8-3-1997 recalled his order passed on 13-2-1997, suspending the termination letters, and has observed that these 138 retrenched workers may file their case under section 25-A of the I.R.O., 1969 before the Labour Court. Mr. Mehmood Abdul Ghani, the learned Advocate for the Corn Pak Limited has contended that these 138 retrenched workers have not individually filed any case challenging their termination as an act of unfair labor practice before this Bench of the Commission; and Corn Pak Employees Union, being not C.B.A. Has also no locus stand to file the petition. He has contended that due to financial constraint, the management has re-organised its establishment, as result whereof has retrenched 138 workers and their termination is not lockout. The employer has right to reorganise its establishment, as result whereof retrench the number of workers within the ambit of reorganization. The termination, having taken effect, cannot be agitated as an act of unfair labor practice before this Bench of the Commission, by filing the petition under section 22-A(8)(g) read with Regulation 32(2)(c) of N.I.R.C. (P&F) Regulations, 1973. He has contended that this petition can only be filed, when there is any apprehension of commission of an act of unfair labor practice and not in respect of an act of unfair labor practice, which has already been committed, and for this reason also the petition filed by the Corn Pak Employees' Union is not maintainable. He has contended that all these 138 retrenched workers now have served grievance notices under section 25-A of the I.R.O., 1969 on the management of Corn Pak Limited intending to file grievance petitions before the Labor Court, for the same reasons also the petition filed by Corn Pak Employees' Union is not maintainable. He has contended that there is no embargo put by section 47 of the I.R.O., 1969 fob retrenchment of the workers as process of reorganisation during the pendency of proceedings before the conciliator. In support of his above contention Mr. Mehmood Abdul Ghani, the learned Advocate for the Corn Pak Limited has cited various authorities. In case of The Workers of Bata Shoe Co., Lahore v. Bata Shoe Co. And another reported in 1971 PLC 1 the Full Bench of the Honourable Supreme Court of Pakistan at page 11 has examined in detail as to what is the lockout as follows: "Lock-out' means the refusal by an employer to continue to employ any number of persons employed by him." According to the learned counsel for the appellant, the termination of the services of the workmen was the refusal by the respondent-company to continue to employee any number of persons employed by them. This contention has no force. In the case of Feroz Din and others v. State of West Bengal reported in AIR 1960 SC 363 it was held that the words "refusal by an employer to continue to employ any number of persons employed by him" in section 2(1) do not include a discharge of an employee. It was further held that the words "refusal to continue to employ" in section 2(1) mean a refusal by the employer to allow any number of persons employed by him to attend to their duties without effecting a termination of service. In this connection, the learned Judges of the Indian Supreme Court observed as under:-- "It, therefore, seems to us that the words 'refusal by an employer to continue to employ any number of persons employed by him' in section 2(1) do not include the charge of an employee. We feel no difficulty in taking this view so for it does not seem to us that the words ' refusal to continue to employ' in section 2(1) plainly include a discharge. These words have to be read with the rest of the definition and also the word ' lock-out'. The other parts of the definition contemplate no severance of the relation of employer and employee. The word ' lock-out' , as stated in the Presidency Jute Mills Co.'s case (1952 Lab. AC 62), in its dictionary sense means refusal on the part of an employer to furnish work to his operatives except on conditions to be accepted by the latter collectively.
Therefore, in our opinion, the rules of interpretation do not prevent us from giving to the words used in the definition the meaning ' a refusal by the employer to allow any number of persons employed by him to attend to their duties without affecting a termination of service', as was done in the Presidency Jute Mills Co.'s case, which would avoid one part of the Act coming in conflict with another."
' This aspect of the question was also considered by the Appellate Tribunal in the case of Presidency Jute, Mills Co. Ltd. v. Their Employees' Union. In that case also it was considered necessary to restrict the plain grammatical meaning of the phrase "refusal by an employer to continue to employ" in the definition as it would otherwise lead to inconsistent and absurd results when the other provisions of the Act are considered. In this connection the learned Tribunal observed as under:- "The meaning of the phrase must, therefore, be refusal by the employer to allow any number of his workmen to attend to their duties without terminating their services.' Thus, in a lockout the relationship of employer and employee remains as before, only some links in the chain of that relationship are broken. This construction would avoid the absurdity and the conflict with section 33 which we have noticed above and would be in harmony with the generally accepted conception of lockout. Lockout is the counterpart of strike. According to that conception, neither of them automatically puts an end to the relationship of employer and employee. In both the cases, the relationship continues and in the one (strikes), it is the suspension of services by the employees themselves, whereas in the other (lock-outs), it is the suspension of their services by the employees. In neither case is the employment finally determined, the intention of the workmen in the one case and of the employer in the other being the employment would be continued as soon as satisfactory settlement of the cause is arrived at. The authorities have gone so far as to say that a refusal of a number of workmen to work with the intention of or which has the effect of severing the relationship of employer and employee does not amount to a strike (Teller, Vol. I, section 79(2).
The same principle would, in our opinion, govern the cases of lock-outs. Thus, termination of service is one thing and lockout is another."
' Considering the case of the appellant from this angle, it is quite clear that the words used in the definition of lock-out', namely, "the refusal by an employer to continue to employ any number of persons employed by him" does not cover the case of dismissal of employees by the employers."
33. In case of All Muhammad and 64 others v. Messrs Brooke Bond (Pakistan) Limited, Karachi reported in 1970 PLC page 1, Industrial Appellate Tribunal West Pakistan has held that "lock-out does not mean discharge or dismissal of a workman from service."
34. In case of Pakland Cement Employees' Union, Karachi through General Secretary v. Joint Director Labor, Karachi and another reported in 1993 PLC 182 the learned Labor Appellate Tribunal Sindh in para. 6 of its decision has observed that "lock-out', as held in Lal Muhammad and 64 others v. Messrs Brooke Bond (Pakistan) Limited, Karachi reported in 1970 PLC page 1 does not mean discharge or dismissal of a workman from service. In case of Reckitt & Colman Pak. Workers Union v. Messrs Reckitf & Colman of Pakistan Ltd. Reported in 1962 PLC 263 Central Industrial Court Pakistan, Karachi has observed that "Lock out does not imply discharge of workers." In case of Messrs Saifee Development Corporation Ltd., Karachi v. Inamur Rehman reported in 1969 PLC 459 Industrial Appellate Tribunal West Pakistan in para. No, 11 of its order has held that "The Management gave two grounds for terminating the employment of the respondent, namely, (1) that on re-organisation of the Department, the respondent had become surplus, and (2) that there was financial difficulty also because of which the retrenched the respondent. To my mind, the right of the Management to retrench and reorganize its Department, cannot be limited by the Industrial Court. Every employer has an absolute right to reorganize its Department and to do away with the services of persons, who may have become surplus." In the instant case the appellant while terminating the services of the respondent kept in view the principle of lasting first-out. This has not been challenged before me." In case of Zeal Pak Cement Factory Limited., Hyderabad v. The Chairman, West Pakistan Industrial Court, Lahore and 2 others reported in 1965 PLC 216, the Honorable Full Bench of Supreme Court of Pakistan at page 221 has held that "In the present case, there is no manner of doubt that there was a reorganization carried out for a bona fide purpose of the industry, and the notices of discharge were given exclusively in relation to the redundancy which thus resulted and without any taint of victimization. There was nothing in the nature of punishment or vindictiveness involved. We consider that the action of the Factory in respect of the employees retrenched in this case as surplus to requirements being bona fide, it did not attract the control of the Industrial Court under section 30 of the Ordinance, and we accordingly allow this appeal and set aside the order of Chairman directing the reinstatement of these 19 workers." In case of Muhammad Sirajuddin v. Labour Appellate Tribunal and another reported in 1983 PLC 1286, the Honorable Karachi High Court at page 1289 held that "on the question of re-organization undertaken in the institution of the respondent No, 2, the learned Tribunal has rightly relied on the evidence of the respondent and has come to the correct conclusion that since it has not been established that the reorganization was mala fide or it was carried out as a cloak or device to hit some employee or employees, the respondent No, 2 was free to make the re-organization as was necessary and in consequence there of retrench as many members of establishment as were found by them to be redundant subsequent to completion of the process of the re-organization." In case of Hazrat Imam and 3 others v. Messrs Star Mills Ltd., Karachi reported in 1989 PLC 88, it was held by the learned Appellate Tribunal Sindh and termination of services of surplus workers due to re-organization was right of employer. Its gist is as follows: Section 47.--West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O. 12(3)--Reorganization--Retrenchment--Termination of services of surplus workers--Right of employer to such termination--Mills admittedly suffering continuous loss--- Different sections and departments lease out to independent contractors and services of surplus workers--Terminated--Contention that terminated workers included office-bearers of trade union hence employer was bound to seek permission of Labor Court under section 47 of Industrial Relations Ordinance, 1969 repelled--Held: employer had a right to enter into a contract for execution of work and it is open to contractor to employ his own workmen and in cases of office- bearers of trade union, no permission was required to be obtained.
' In case of Syed Momin v. Rashid Textile Mills Ltd. And 3 others reported in 1987 PLC 852 his Lordship, Justice Mamoon Kazi, the then Justice of Honourable Karachi High Court presently the Honorable Chief Justice of Sindh High Court had examined the scope of section 47 relating to embargo on employer not to alter to disadvantage of any workman, his conditions of service during pendency of industrial dispute--At page 853, his Lordship has held: "A plaint-reading of subsections (1) and (2) of section 47 of the Ordinance, XXIII of 1969 clearly indicates that the restrictions placed thereby on the powers of the employer to discharge or dismiss workmen or officers of a registered trade union relate only to such cases where services of a workman or an officer of a registered trade union have been terminated as a result of punishment. This is clearly indicated by the words "or otherwise punished" occurring in both the subsections. Although it is true that ordinarily the word "discharge" as distinguished from "dismissal" does not denote termination of employment as a measure of punishment, but the language used by the Legislature in section 47 of the Ordinance does not admit of any other construction. Any other interpretation would lead to absurdities, as it cannot be assumed that a workman cannot be discharged on account of superannuation or on becoming surplus, during the pendency of an industrial dispute."
' Reference in this respect may also be made to the judgment of Honorable Supreme Court in the case of Zeal Pak Cement Factory Ltd. v. Chairman, West Pakistan Industrial Court PLD 1965 SC 420 wherein the Honorable Supreme Court while interpreting similar provisions of section 30 of Industrial Disputes Ordinance, 1959 came to the same conclusion. In that case, surplus staff of the petitioner therein had been discharged from service. Mr. Shafiq Qureshi, Advocate has however argued that case decided by Supreme Court is distinguishable as there is no provision corresponding to subsection (2) of section 47 of the Ordinance, in section 30 of Industrial Disputes Ordinance, 1959. Although it is true that alike of section 47(2) cannot be found in the Industrial Disputes Ordinance, but I fad that the case decided by the Supreme Court is still attracted to the facts of the present case as the words "discharged, dismissed or otherwise punished" have been used in the same context in sections 30 and 47 of the two Ordinances. In any case; it would be wrong to assume that "discharge" always has reference to termination of employment otherwise than by way of punishment. In this connection I would like to quote from the judgment of the Allahabad High Court in Chaman Lal Seth v. State of Uttar Pardesh AIR 1957 All. 241 as it was held in that case as under:-- "Where an order in terms states that the Government servant is discharged from service, the use of the word 'discharged' is not conclusive. It is the substance of the matter which must be looked at and if in fact the servant had been removed by Government from its service as a punishment the use of the word 'discharged' would amount to dismissal or removal."
Consequently, I am unable to agree with Mr. Shafiq Qureshi that a case of simple discharge without any element of punishment therein would fall within the purview of section 47(1) or 47(2). In case of Messrs.' Asahi Industries v. Sindh Labor Appellate Tribunal, Karachi and 2 others reported in PLD 1979 Karachi 493 the Division Bench of Honorable High Court of Sindh at page 498 has held that "contention of learned counsel for the petitioner that dismissal order is not effective till the time it is served on the' employee is devoid of any force. In case/Appeal No, 12(116)/90 (Service Sales Corporation (Pvt.) Ltd., Gulberg, Lahore through its Manager, Administration, Major (Retd.) Kokab Nazir v. Zar Khan, Salesman Services Shoes Store, Saddar Road, Peshawar, the Full Bench of this Commission in case of transfer having become effective held that an act of unfair labour practice has been already committed as such prohibitory orders suspending the transfer order cannot be passed by N.I.R.C. In case of Sher Khan and 17 others v. Bawany Metals Ltd. And 2 others in case No,4A(17)/97-K/24(20)/97-K, the learned Member of this Commission Mr. Muhammad Hussain Chaudhry in case of retrenchment of workmen already taken in effect by his order dated 7-4-1997, recalled the order passed by him, whereby he had suspended the orders of termination of 17 workers. In case of The Chittagong Mercantile Employees' Association v. The Chairman, Industrial Court of East Pakistan, Dacca and 6 others reported in 1966 PLC 545, the Full Bench of Honourable Supreme Court of Pakistan has observed that "unrecognized Trade Union, though registered, has no locus standi to raise an industrial dispute on behalf of its members or to take it to Industrial Court." In case of British Airways Staff Union (Regd.), Karachi v. Sindh Labour Appellate Tribunal and 2 others reported in 1980 PLC 256, Division Bench of the Honorable Karachi High Court at page 258 has held that "petitioner union on ceasing to be Collective Bargaining Agent ceased to be entitled to represent the workers in the respondent employer's establishment in the pending proceedings under section 32(1-A) of the LR.O." In case of Karachi Pipe Mills Employees' Union, Karachi v. Karachi Pipe Mills Ltd., Karachi reported in 1992 SCMR 36 Full Bench of Honorable Supreme Court of Pakistan at page 44 has held that "The collective bargaining by C.B.A. Would not mean that C.B.A. Under section 34 would also represent all workers before Labour Court in respect of the collective grievance of the workers". Further it was held that "In case of an individual grievance of a worker in respect of pre-determined rights an application is to be made under section.,25-A of the Ordinance."
35. On the proposition that in case act of unfair labour practice already has been committed, there can be no application for prohibitory order, Mr. Mehmood Abdul Ghani, the learned Advocate for Corn Pak Limited has placed his reliance on case of (1) Saeed Ahmad Kazi v. Chairman, National Industrial Relations Commission and another judgment of Division Bench of Honourable Karachi High Court reported in 1984 PLC 1480, (2) Judgment of Division Bench of Honourable Karachi High Court in case of National Bank of Pakistan v. Senior Member, N.I.R.C. And another reported in 1986 PLC 985 and (3) Judgment of Full Bench of Honourable Supreme Court of Pakistan in case of Iftikhar Ahmed and others v. President, National Bank of Pakistan and others reported in PLD 1988 SC 53.
36. Mr. S.P. Lodhi, the learned representative for Corn Pak Employees' Union has raised an objection that Mr. S.H.A. Jazbi cannot represent Corn Pak Limited, as he does not fall within the definition of employer. Mr. S.H.A. Jazbi controverting this contention of Mr. S.P. Lodhi, the learned representative for Union has filed letter of Directorate of Labour, showing that he has been notified as Notified Factory Manager under the Factories Act, 1934. In order to show that S.H.A. Jazbi falls within the definition of employer and can represent Corn Pak Limited in the proceedings Mr: Mehmood Abdul Ghani, the learned Advocate for Corn Pak Limited has placed his reliance on case of Muhammad Aqil v. Chairman, Sindh Labour Appellate Tribunal and another reported in 1974 PLC 194, and order of the learned Full Bench of N.I.R.C. In Appeal No, 12(69)/95 in case of Zeal Pak Cement Factory v.
Zeal Pak Cement Factory Employees' Union and in view of this material Mr. S.P. Lodhi, the learned representative for Corn Pak Employees' Union has dropped his objection during the advancement of his arguments.
From the above discussion and law cited above by the parties, I am of the considered view that the termination of 138 workers has already taken effect, as such the petition under section 22-A(8)(g) of the I.R.O., 1969 read with Regulation 32(2)(c) of N.I.R.C. (P&F) Regulations, 1973, for seeking the relief of prohibitory nature by Corn Pak Employees' Union, which is held above as not C.B.A., will not be maintainable. These 138 terminated workers are said to have served. Grievance notices under section 25-A of the I.R.O., 1969 on the management of Corn Pak Limited, which obviously may follow filing of grievance petitions by these individual terminated workers, whether their termination is illegal on any account may be determined in those grievance petitions if so filed, on the basis of evidence laid by the parties on this issue.
' In view of aforesaid reasons Application No, 4A(03)/97 and Application No, 4A(55)/97-K filed by Corn Pak Limited are allowed and Application No, 4A(19)/97-K and 4A(78)/97-K filed by Corn Pak Employees Union are dismissed.
' Now remains complaint under section 22-C of the I.R.O., 1969, filed by Mirza Saleem. Baig against Vazir Hassan Qureshi and S.H.A. Jazbi, Managing Director and Manager Personnel and Administration respectively. On this complaint notice was issued to the contemners by Mr. Muhammad Hussain Chaudhry, the then learned Member of this Bench of the Commission on 19- 2-1997, which was recalled by him in his order dated 8-3-1997 passed in case No, 4A(19)/97-K.
' Mr. Mehmood Abdul Ghani, the learned Advocate for Corn Pak Limited has contended that termination of 138 workers had already taken effect before filing of the case No, 4A(19)/97-K by Corn Pak Employees Union, wherein order was passed by Mr. Muhammad Hussain Chaudhry, the then learned Member of this Bench of the Commission on 13-2-1997, after the termination to have taken effect, as such no contempt has been committed by the condemners. In support of his contention he has also placed his reliance on decision of the learned Full Bench of N.I.R.C. In Appeal No,12(40)/86, dated 7-12-1986 (Manager Administration Wyeth Laboratories (Pak) Limited, Gulberg- III, Lahore v. Ch. Gulzar Ahmed and another).
For the reasons that termination of 138 workers was made on 6-2-1997 and prohibitory order was passed on 13-2-1997, which was recalled by the then learned Member Mr. Muhammad Hussain Chaudhry by order, dated 8-3-1997, there appears no merits in the present complaint under section 22-C of the I.R.O., 1969, which also stands dismissed.
' Announced in Open Court.
' Given under my hand and seal of Court, this 15th day of May, 1997.