DECISION ' Aggrieved by the order, dated 11th October, 1.999 of the 5th Sindh Labour Court Karachi, Holiday Inn Crown Plaza Employees Union (hereinafter referred to as the C.B.A.) has preferred this appeal under section 37(3) of Industrial Relations Ordinance, 1969. The facts leading to this appeal may be summarized as follows. The appellant is the registered collective Bargaining Agent (Trade Union) of the employee of Holiday Inn Crown Plaza, a Five Star Hotel which has been engaged in doing hotel/restaurant business for over 18 years. Despite having the very sound financial position and earning of huge profits, the hotel's management have remained callous to the rights and benefits of the hotel's more than 400 hotel management employees. Therefore, on 6-11-1997, the C.B.A.
Served on the respondents hotel management a Charter of Demands followed by notice of strike on 15-12-1997, by registered post. A copy of the notice of strike was also sent to the Assistant Director Labour (Conciliation) whereupon conciliation proceedings ensued. But on account of lack of interest on the part of hotel management, the conciliation proceedings not only lingered on but also they ultimately ended up in failure. After the letter of such failure was issued by the Conciliator, the appellant C.B.A. Filed application under section 32(1-A), I.R.O., 1969 in the Labour Court hereinabove which on the basis of Preliminary Legal Objection dismissed the same and hence this appeal.
2. I have heard the arguments of Mr. Abduz Zubaid, representative of the appellant C.B.A. And Mr. Masood Ahmed Khan for the respondents and have also perused the relevant record.
3. The first Legal Objection brought to any notice by the respondent's learned counsel was with regard to limitation. He submitted that the appeal was time-barred. I have examined this objection by referring to the relevant dates. It appears that the impugned order was announced on 11th October, 1999 and the usual stamp affixed on the said order with C.O. C's. Signature mentioned 11- 10-1999 as the date not only for preparation of the copy of the order but also of the application made for the said copy. The stamp also bears 26-10-1999 as the date of delivery of the copy of the order. Keeping these dates in view, the question arises why the appellant went to collect the copy of the order after 15 days from the date (11-10-1999) on which he had applied for the copy though the copy was ready on the same date. According to the learned representative of the appellant despite the several visits of the appellant for collecting the copy of the order, it was delivered only on 26-10-1999, indicating that it became ready on that very date for delivery to the appellant.
4. As provided the subsection (3) of section 37 of I.R.O. The party aggrieved by award/decision of the Labour. Court would prefer appeal within 30 days of the delivery of passing of the award/decision. Counting this statutory period from the date (i,e, 11-10-1999) on which the order was announced, it would expire on 9-11-1999. However, the appeal was filed on 23-11-1999, i,e, 14 days after expiry of limitation. I am unable to believe that though the order was ready on 11-10-1999, yet it was not being delivered to the appellant despite his repeated visits. There was also not A material on record to show that the appellant made several visits for collecting the order but without any result. Even after getting the copy on 26-10-1999, he took nearly one month in filing the appeal on 23-11-1999, though he must have noticed from the endorsement made on the copy of the order that it was ready for delivery on 11-10-1999. This should have made him vigilant for filing appeal which was to be filed latest by 9-11-1999. Some how he did not care and kept away the copy for nearly one month and filed appeal on 23-11-1999 after expiry of limitation period. Such leisurely attitude on the part of the appellant goes absolutely unexplained. Even condonation application was not filed for condonation of the above delay. Accordingly the appeal was time- barred.
3. Apart from above, the respondent's learned counsel referred to two other Legal Objections. One objection, according to him, was illegal constitution of C.B.A., which was, therefore, not competent to perform the functions assigned to such organization. Elaborating the objection he submitted that four out of six office-bearers were no longer employee of the respondents hotel. Appellant Union was registered on 26-6-1996 vide Registration Certificate at Annexure-A. Subsequently C.B.A., Certificate was issued on 13-10-1997 vide Anenxure-B. The said learned counsel invited my attention to the letter, dated 15-12-1997 at R.1 which reflected the change in office-bearer of the union. According to that change following were the office-bearers with respective designations mentioned against their names:-
(1) Mr. Sikandar Ali-President
(2) Mr. Muhammad Sulaiman-Vice-President
(3) Mr. Ayub-General Secretary
(4) Mr. Abdul Jabbar - Joint Secretary
(5) Mr. Muhammad Azam - Finance Secretary
(6) Mr. Muhammad Naeem - Assistant Finance Secretary ' The above position of the Union has not been denied even by the appellants in their reply to Legal Objections. However, the contention of the respondent's counsel was that from the aforesaid office-bearers of the Union. Mr. Sikandar Ali, President had been retrenched vide R/2 and Mr. Ayub, General Secretary and Mr. Muhammad Naeem, Finance Secretary had resigned vide their resignation at R.3 and R.4 respectively. Therefore, they had ceased to the employees of the respondent's hotel. Similarly Mr. Abdul Jabbar Joint Secretary was also outsider and not the employee of the hotel.
5. In course of the arguments the stand taken by the representative of the C.B.A. Was that since the aforesaid three office-bearers namely Sikandar Ali, Ayub and Naeem had filed grievance petition against their ouster from hotel service, they continued to be in service pending the disposal of their grievance petitions excepting Muhammad Naeem whose petition as dismissed on account of non- prosecution. It may be true that due to pendency of the petitions filed by Sikandar Ali and Ayub they continued in service until disposal of their petition, but their such continuation was only technical in nature. On the basis of such shaky continuance, they could not act or perform the functions of the office-bearers which, in the least, had to be suspended or postponed until after their full restoration to service. Accordingly the hotel management had taken a correct stand the negotiations with regard to the dispute between the parties could not be made with such defective C.B.A. The position has been further clarified by the Conciliator in his letter, dated 13-7-1998 at (page 115) addressed to the Managing Director of the hotel. It is clear from his letter that as many as 21 joint meetings were arranged between both the parties during the period from 29-12-1997 to 30-7-1998, but no negotiations took place between the parties because of this involvement in the controversy with regard to illegal constitution of the C.B.A. The letter further shows that as an alternative the Concliator wanted to refer the matter to Arbitrator, to which proposal though hotel management agreed, yet the other side namely the C.B.A. Was reluctant to accept even that proposal. As disclosed in the letter, the C.B.A. Insisted on the Conciliator to make declaration of failure of negotiations whereas the hotel management desired him to declare the closure of negotiations, as negotiations had never taken place. Keeping the above background of the case in mind. I am of the view that since no negotiations had even initiated between the parties, what to say, about their continuance or failure, the declaration that negotiations had failed was technically wrong.
6. Another objection highlighted by the respondent's counsel was that since there was no declaration of failure of negotiations the appellant C.B.A. Could not approach the Labour Court for adjudication of the dispute and therefore, the application filed in the Labour Court for that purpose was premature. This is clear from section 32(1-A), I.R.O., the requirements of which were not complied with before, the C.B.A. Approached the Court for adjudication of the dispute. This objection was not without substance. The negotiations having not taken place, the question of their failure did not arise. Consequently as pointed out above, the declaration of such failure was misplaced.
' For above reasons the appeal is liable to be dismissed and, therefore it is dismissed.