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Industrial Dispute Case No. 255 of 1970, decided on 13th October 1970.

Ss. 34 & 43‑Industrial dispute‑Cannot be deemed to be in existence unless raised by collective bargaining agent‑Union of workers, in presence of an existing Trade Union recognised as aggrieved party raising charter of demands and serving strike ultimatum‑Not a col lective bargaining agent‑Employer seeking prohibition in anticipation and praying for such strike being declared illegal‑There being no industrial dispute, in circumstances, application of employer under ‑ S. 34, held, not maintainable.

S. 45(1) Prohibition of strike‑Court can pass order of prohibition only when strike already commenced ‑ Prohibition. in anticipation ‑ Not possible.

This is an applica tion under section 34 of the Industrial Relations Ordinance, 1969.

The case of the first party is that under them there was only one workers' Union till recently and they were the sole collective bargaining agent. But in spite of that the second party who have formed themselves another Union, sent a letter to the first party on 27‑7‑1970 about their existence and the same was registered with 35 members only. They submitted a charter of demands on 17‑8‑1970 and the first party replied to them advising them to elect the collective bargaining agent. There was no decision in the matter of selection of the collective bargaining agent. But instead of complying with the provision of law the second party sent a letter dated 29.8‑1970 saying that section 22 of the Industrial Relations Ordinance, 1969 (hereinafter referred to as the I. R. O.) would not apply in their case and they served a 21‑days' ultimatum on the charter of demands. The first party, through their lawyer, served‑ a legal notice on the Executive Committee of the second party demanding withdrawal of the so‑called strike notice which was published in the Morning News by the second party on 4‑9‑1970. As the strike called by the second party is illegal, it has been prayed that it should be prohibited in anticipation and be declared illegal as such.

The second party entered into appearance and denied the allegations by submitting a written statement. In their written statement they have stated that they have not served any strike notice and that the petition is premature as such. They further stated that an application under section 34 of the I. R. O. pre‑supposes existence of an industrial dispute as per section 43 of the 1. R. O. and as the second party is not competent to raise any such dispute, so tile first party cannot pray for any relief in the non‑existence of an industrial dispute. The petition should, therefore, be dismissed.

Points for determination in the present case are

(1) Whether the petition is maintainable

(2) What relief, if any, is the first party entitled to

Points 1 and 2 Parties have been heard at length on two occasions. It was admitted that on 10‑11‑1969 the only Union in the establishment entered into a tripartite agreement with the first party on different points and this agreement is protected under the law. It transpired during submissions that for some reasons or other, the workers covered by the second party. Union have been deprived of the benefits of the said agreement and hence the trouble started between t11Z parties by way of formation of the second party Union and their subsequent activities which formed subject‑matter of the present case.

According to section 34 of the I. R. O. the parties to an industrial dispute in matters of right guaranteed by law, agreement or otherwise, can prefer an application in the Court. But it has been pleaded that in the present case the second party Union is not a collective bargaining agent and hence they could not raise any dispute and no industrial dispute shall be deemed to be in existence under section 43 of the I. R. O. unless it has been raised by a collective bargaining agent which the second party is not. It appears that there was an agreement between the Workmen and the employer and that the workers covered by the second party Union were aggrieved if they were deprived of the benefits of the said agreement,

It has been submitted that the first party by bringing the dispute in the Court has practically recognized an industrial dispute though there is no industrial dispute, which could be raised by the second party. On this submission it would, however, appear that the second party was not competent to raise any industrial dispute and they could not come to the Court. In that sense, this application is also not maintainable since any dispute raised by any Union without being collective bargaining agent could not be treated as an industrial dispute and if it is not an industrial dispute it could not be straightway brought to the Court by either of the parties. So we find that no industrial dispute exists between the parties. The second party was not competent to raise any industrial dispute under section 26 or 28 of the I. R. O. and no such dispute exists in the eye of law. The Court cannot pass any order of prohibition of strike under section 45(1) of the 1. R. O. as under that section the Court can only prohibit a strike when it has already commenced.

Therefore, for all these reasons the application, of the first party being premature and misconceived as there is no industrial dispute in the present case in the eye of law, is dismissed on contest.

Members on consultation agreed with my findings and decision above.

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