1. ' The petitioner's union has filed this petition and has prayed for the following relief:
(i) hold and declare the impugned order of learned respondent No. 3 as being without jurisdiction;
(ii) set aside the impugned order;
(iii) hold and declare that the petitioner is entitled to represent all or any workman in any proceedings including disciplinary proceedings;
(iv) direct the private respondents Nos. 1 and 2 to allow the petitioner Trade Union to represent all or any workman in any proceedings including disciplinary proceedings;
(v) hold and declare all such proceedings against or in respect of all or any workman held and order passed without giving opportunity to the petitioner to represent the concerned workman workmen.
(vi) grant any other relief/reliefs deem fit and proper in the circumstances of the case."
2. ' This petition has been filed against the interim order passed by the learned First Labour Court, Karachi on 25th September, 1995. By virtue of an application filed in the Labour Court it was prayed by the petitioner that all the proceedings of domestic enquiry against the worker Babar Mehmood and Yar Muhammad be stayed till the decision of main application. This petition was resisted by the employers. The original application was filed under section 34 of the Industrial Relations Ordinance, 1969. In the main application under section 34 of I.R.O., 1969 the following prayer was made by the petitioner union: "(i) To direct the respondent for enforcement the right guaranteed under section 22(12) of the I.R.O., 1969, in letter and spirit;
(ii) to direct the respondent to ensure and allow the participation of Mr. Muhammad Ali the President of the abovenamed Applicant C.B.A. Union in the so-called enquiry proceedings of Mr. Babar Mehmood and Yar Muhammad, which have been started;
(iii) to direct the respondent to ensure and allow the participation of Mr. Muhammad Ali the President of the abovenamed Applicant C.B.A. Union in the so-called enquiry proceedings of M/s. Muhammad Ashraf, Muhammad Ilyas, Zahid Alam, Sabir Khan and Muhammad Hussain, later on, if any, started;
(iv) to set aside the Orders/Letters dated 18-9-1995 and 20-9-1995 issued by the respondent, being void, illegal and mala fide and without lawful authority;
(v) to grant any other relief/reliefs in the just and proper circumstances, as may deem by this Honourable Court, in the interest of justice."
3. ' From the nature of the application it appeared that the management has issued charge-sheet to the workers concerned. Workers wanted assistance in the domestic enquiry and wanted that the President of the union to assist them who is admittedly an outsider.
4. ' Mr. Mehmood Abdul Ghani, learned counsel for the private respondent contended that the C.B.A.
5. Certificate is not valid. According to him on the basis of C.B.A. Certificate the petitioner cannot claim to be the Collective Bargaining Agent. They have no right to represent the workers. According to him the application under section 34 of the I.R.O. Which has spoused the cause of individual worker is not maintainable, therefore, patently the Labour Court had no jurisdiction. According to him no exceptions could be taken against the impugned order.
6. ' Coming to the first contention of the learned counsel for the private respondent I find that the C.B.A. Certificate which is termed as provisional certificate was issued by the Registrar of Trade Union in 1976. It was termed as provisional certificate because by then the pro forma of C.B.A.
7. Certificate was not included in Sindh Industrial Relations Rules which were introduced in 1981, through an amendment. According to Mr. Mehmood Abdul Ghani, learned counsel for the respondent, since 1981 till filing of the application permanent C.B.A. Certificate was not obtained by the union, therefore, they cannot claim 'to have the status of Collective Bargaining Agent. It is admitted position that the C.B.A. Certificate was issued by the Registrar of Trade Union in 1976 and when the. C.B.A. Certificate was issued, the proforma of C.B.A. Certificate was not included in the Industrial Relations Rules. There is no challenge to the C.B.A. In any form or manner as contemplated in section 22 of I.R.O. I would, therefore, hold that the petitioners are Collective Bargaining Agents and are entitled to all the previleges of Collective Bargaining Agent as contemplated under the law i,e, Industrial Relations Ordinance.
8. ' Section 22(12) of the I.R.O. Confers the rights on the Collective Bargaining Agent. One such right is mentioned in clause (b) which reads as follows: "22. .............................................................................
(12) .............................................................................
(b) represent all or any of the workman in any proceedings;"
9. ' Mr. Ashraf Hussain Rizvi, learned counsel for the petitioners contended that the C.B.A. Can represent all or any one of the workmen in any proceedings. According to him any proceedings includes the proceedings under the Standing Orders Ordinance such as conducting of an enquiry.
10. He further stated 'representation of workmen' in any proceedings have not been interpreted in by any Court.
11. ' His attention was invited in the open Court to the judgment of Full Bench of this Court in Karachi Pipe Mills Limited v. Sindh Labour Appellate Tribunal and others (1984 PLC (Labour) 1359). This Court has ruled out as follows: "22. There is no doubt that under the provisions of section 49 of the Ordinance, a workman is entitled to be represented in any proceedings under the Ordinance by an officer of a Collective Bargaining Agent but under these provisions the workman must be party to an industrial dispute and that an officer of Collective Bargaining Agent has to represent a workman and not the Collective Bargaining Agent. Even under section 23(12)(b) a right vested in the Collective Bargaining Agent to represent all or any of the workmen in any proceedings would not in our opinion give the Collective Bargaining Agent a right to enforce a right vested in a workman in its own name for to enforce a right by any proceedings and a right to represent all or any workman in a proceedings in our view are two different process. We may quote the relevant provisions here for ready reference: The section reads:
49. Representation of parties.---(1) A workman who is a party to .An industrial dispute shall be entitled to be represented in any proceedings under this Ordinance by an Officer of a Collective Bargaining Agent and subject to the provisions of subsection (2) and subsection (3) any employer who is a party to an industrial dispute shall be entitled to be represented in any such proceedings by a person duly authorised by him.
(2) No party to an industrial dispute shall be entitled to be represented by a legal practitioner in any conciliation proceedings under this Ordinance.
(3) A party to an industrial dispute may be by a legal practitioner in any proceedings before the Labour Court or before an arbitrator, with the permission of the Court or the arbitrator as the case may be.
12. ' According to Ballantine's Law Dictionary, 3rd Edition page 1095 word 'represent' means to act for.
13. To stand in the place of.
14. ' According to Black's Law Dictionary, 4th Ed., para. 1465. ' to represent a person is to stand in his place to supply his place, act as his substitute. Plummer v.
15. Brown (64 Cal. 429, I.P. 703); ' But all this must be in his right and name."
16. ' This judgment was impugned before the Humble Supreme and Humble Supreme Court has upheld the same judgment reported as Karachi Pipe Mills Employees' Union, Karachi v. Karachi Pipe Mills Ltd., Karachi (1992 SCM R 36).
17. ' This brings me to the crux of the grievance as to whether an Officer of Collective Bargaining Agent who is admittedly an outsider can render assistance to a workman who is proceeded against by the employer under Standing Orders Ordinance. It will, therefore, be advantageous to reproduce the proviso of Standing Order 15(4) which reads as follows: "Provided that the workman proceeded against may, if he so desires for his assistance in the enquiry, nominate any workman employed in that establishment and the employer shall allow the workman so nominated to be present in the enquiry to assist the workman proceeded against and shall not deduct his wages if the enquiry is held during his duty hours."
18. It may be noticed that the right is conferred on a workman who is proceeded against and if he so desires for his assistance in the enquiry nominate any workman employed in that establishment.
19. The Legislature has given right to a worker to be assisted by a workman employed in that establishment itself. It is well-settled law that while interpreting the statutes the Court can iron out creased but cannot alter the material. If the intention of the Legislature would have been that any office-bearers of a union could assist the worker, the Legislature would have specifically said so and instead of "any workman employed in that establishment", "the Legislature would have written" any officer of Collective Bargaining Agent or union of that establishment".
20. ' Even otherwise it is a proviso which is to be strictly construed being an exception to the main subsection. The Court can gather the intention of the Legislature from the words used by the Legislature and the Courts cannot substitute the words. Even otherwise (sic). In view of the language implied by the Legislature i,e, "workman" may if he so desires".
21. ' In view of this legal position I would hold that an outsider who is office-bearer has no right to represent the workers in the domestic enquiry and only workman employed in that establishment has the right to assist a worker who is proceeded against by the employer in disciplinary proceedings.
22. ' Even otherwise the right to be represented by workman is a right conferred on a worker who is proceeded against in the disciplinary proceedings. It is an individual right conferred on a workman himself. The Collective Bargaining Agent cannot represent individual worker through an application under section 34 of I.R.O. In view of the law laid down by this Court and upheld by the Hon'ble Supreme Court. The proceedings before Labour Court were initiated unlawfully and equally Labour Court exercised the jurisdiction not possessed by him in entertaining such application.
23. ' In view of this legal position emerging, after hearing the parties in the open Court it was held that the application under section 34 of I.R.O., 1969 espousing the cause of an individual worker was not maintainable. Consequently, therefore, this petition is dismissed with no order as to costs.