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Appeal No. KAR‑29 of 1972, decided on 24th August 1972.

, Ss. 22, 34 & 43‑Application under S. 34‑Can be made by Union declared as Collective Bargaining Agent and not merely by a registered Trade Union.

It was contended that according to the provisions of section 34 of Industrial Relations Ordinance, 1969, prior to its amendment on the 17th October 1970, an application thereunder could be made by a registered Trade Union although not successful in referendum to elect the Collective Bargaining Agent.

Held: Having regard to the provisions of section 43 of the industrial Relations Ordinance, 1969, no industrial dispute can be deemed to exist unless it is raised by a Collective Bargaining Agent. It would be against the spirit of the. Ordinance to permit a Union, which has lost to a referendum, to advocate the cause of workers in preference to a Collective Bargaining Agent. Under section 22 of the Ordinance, as it stood prior to its amendment, it was a Collective Bargaining Agent, which could undertake collective bargaining with the employer on matters connected with the employment, non‑employment or the terms of employment or the conditions of work of any person. It would appear from a perusal of the Ordinance that a Trade Union, which had lost in the referendum, could not have any locus stands to represent the workers. There is no force in the contention that an industrial dispute could be raised by a registered Union even if it had lost in the referendum for decla ration to be the Collective Bargaining Agent. In the first place, a registered Union, which had lost in the referendum cannot be said to be a party to an industrial dispute within the meaning of section 34 of the Ordinance, as it stood prior to 17th October 1970. The Legislature while framing 1969‑Ordinance intended to invest the Collective Bargaining Agent with extensive power so that it could effectively bargain and negotiate on behalf of the workers, whom it represented. To hold that a Union, which had lost in a referendum to advocate the cause of workers would be against the spirit and letter of the Ordinance.

S. P. Lodhi for Appellant.

M. A. Khan for Respondent No. 1.

Aslam Bin Ibrahim for Respondent No. 2.

Data of hearing: 21st August 1972.

This is an appeal against an award dated April 9, 1972, whereby the learned Chairman of the Second Labour Court came to the conclusion that the appellant‑Union was not competent to file the application under section 34 of the Industrial Relations Ordinance. 1969 (hereinafter called the Ordinance), seeking re‑instatement in service of 21 workers with bask benefits. The facts necessary for the disposal of the contentions of Mr. Lodhi, the learned representative for the appellant‑Union are these.

2. The appellant‑Union (Fancy Fabrics Industries Workers' Union), made an application on 30th July 1970, under section 34 of the Ordinance for re‑instatement of 21 workers with back benefits. The appellant‑Union, Mr. Lodhi stated, was registered some time in March 1970. Mr. Lodhi also admitted that the Fancy Fabrics Mazdoor Union was also registered in March 1970, as a. Trade Union, An application was made to the Registrar of Trade Unions to hold referendum for declaring the Collective Bargaining Agent. The Fancy Fabrics Mazdoor Union was declared to be the Collective Bargaining Agent and the Registrar of Trade Union issued a Certificate to that effect on 22nd April 1970.

3. The respondent‑company contended that the appellant. Union not being the Collective Bargaining Agent could not make an application under section 34 of the Ordinance. The plea of the respondents found favour with the learned Chairman of the Labour Court and he dismissed the application. .

4. The only point that Mr. Lodhi has taken before me 1; that the. Union was competent to make an application under section 34 of the Ordinance, as it stood prior to its amendment on 17th October 1970. He raised two‑fold points to substantiate his contention. He contended in the first place that the definition of 'industrial dispute' in the Ordinance does no suggest that it can be raised only by a Collective Bargaining Agent. He contended In the second place that section 43 of the Ordinance applies to raising of an industrial dispute and not to making of an application under section 34 of the Ordinance.

5. In order to appreciate the contention of Mr. Lodhi, to learned representative for the appellant‑Union, it would be useful to reproduce section 34 of the Ordinance, as it stood prior t its amendment on 17th October 1970, section 43 of the Ordinance and the definition of 'industrial dispute' given under the Ordinance. These run as under:‑

"Section 34.‑'Any party to an industrial dispute relate to a matter arising out of any right guaranteed or secure to an employee or workman by or under any law for the time being in force or an award or settlement may apply to the Labour Court for adjudication of the dispute.

Section 43.‑No industrial dispute shall be deemed to exist unless it has been raised in the prescribed manner by a collective bargaining agent.

Industrial dispute ' means any dispute or difference between employers and employers or between employers and workmen or between workmen and workmen which is connected with the employment or non‑employment or the terms of employment or the conditions of work of any person;"

6. I need not reproduce the reasons that I have given In Abbas ‑All Shah's case for coming to the conclusion that no Industrial dispute can ‑ be deemed to exist unless it is raised by a Collective Bargaining Agent. It would be against the spirit of the ordinance to permit a Union, which has lost in a referendum, to advocate the cause of workers in preference to a Collective Bargaining Agent. Under section 22 of the Ordinance, as it stood prior to its amendment, when the appellant‑Union made the application, it was a collective Bargaining‑Agent, which could undertake collective bargaining with the employer on matters connected with the employment, non‑employment or the terms of employment or the conditions of work of any person. It would appear from a perusal of the Ordinance that a Trade Union, which had lost in the referendum, could not have any locus standi to represent the workers. In this connection reference may be made to section 43 of the Ordinance reproduced, above.

7. There is no force in the contention that an industrial dis pute could be raised by a registered Union, even if it had lost in the referendum for declaration to be the Collective Bargaining Agent. In the first place, a registered Union which had lost in the referendum cannot be said to be a party to an industrial dispute within the meaning of section 34 of the Ordinance, as it stood prior to 17th October 1970. The Legislature while framing 1969‑Ordinance intended to invest the Collective Bargaining Agent with extensive power so that it could effectively bargain and negotiate on behalf of the workers whom it represented. ‑To hold that a Union which had lost in a referendum to advocate the cause of workers would be against the spirit and letter of the Ordinance. It is noteworthy that the Fancy Fabrics Mazdoor Onion was declared the Collective Bargaining Agent on 22nd April 1970, immediately after the two Unions were registered and the appellant‑Union made the application in July 1970, It appears to me that these 21 workers and a few others had managed to get the appellant‑Union registered, but as it did not have the backing of the workers of the respondent Establishment, it lost in the referendum. I would maintain the award of the learned Chairman of the Labour Court and dismiss the appeal. Mr. Lodhi did not raise any other point, except what I have already mentioned above.

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