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Civil Petition for Special Leave to Appeal No. 850 of 1974, decided on, 9th December 1974.

(On appeal from the order of the High Court, Lahore, dated 12th November 1974 in Writ Petition No. 2095/74).

‑‑ Ss. 34 & 37‑Memorandum of Settlement, during conciliation proceedings, drawn up, employer agreeing to stay action on notice of discharge and employees agreeing to approach Labour Court within 15 days to seek direction for withdrawal of action of discharge and to be bound by decision of Labour Court‑Contention that no further appeal lay against order of such Labour Court‑Held; Very fact of agreement having contemplated decision of Labour Court showed giving of decision by a Labour Court which had necessarily to be in accordance with law‑Validity of such decision in consequence, also challmgable in appeal.

Mohammad Aqil v. Chairman, Sind Labour Appellate Tribunal 1974 P L C= 194 distinguished.

M. Nawaz Kasuri, Advocate Supreme Court instructed by Mahmood A, Qureshi, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing . 9th December 1974.

The petitioner is a Labour Union of the Employees of the Kamraa' Hotel, Kashmir Road. Rawalpindi. The pro prietor of the said hotel, on the 1st September 1973, served notices for the: termination of the services of six of its kitchen employees with effect from the 30th September 1973, on the ground that the kitchen was running at a loss.

On receipt of the notices, the Union took up the matter with the pro prietors and then the matter went to the Conciliator under the Industrial Relations Ordinance. During the conciliation proceedings, a Memorandum of Settlement was drawn up to the following effect:‑

"The employer will stay action on the notice of discharge dated 1‑9‑73 served on six employees and in the meantime the Union will approach ‑the Punjab Labour Court, Central Zone, Lahore, within 15 days ‑seeking direction for withdrawal of the said action of discharge. The decision of the Labour Court will be binding on the parties."

The Union then approached the Labour Court on 6‑10‑1973 and the said Court held on the 9th August 1974, that the notice was illegal and amounted to victimisation. The respondent‑Company went up in appeal to the Punjab Labour Appellate Tribunal. An objection was raised to the jurisdic tion of the Tribunal but the Tribunal overruled the objection and allowed the appeal. The petitioner‑Union then came to the Lahore High Court in ,the writ jurisdiction.

A learned Single Judge of the High Court has dismissed the same in limine. The Union now seeks special leave to appeal.

The respondent‑Company has filed a Caveat and a preliminary objection has been taken on behalf of the Caveator to the effect that there is no dispute now pending between the parties, as the kitchen has been leased out to a contractor. Four out of six employees have since taken their discharge but two are still in the field. Hence it cannot be said that there is no live issue now pending. This objection is, accordingly, overruled.

Learned counsel for the petitioner contends that the High Court was ‑wrong in taking the view that the appeal 1,efore the Labour Appellate Tribunal was competent, because, under the Memorandum of Settlement, ‑the Labour Court was really appointed as an Arbitrator and the award of the Labour Court as such Arbitrator was binding on tae parties in accord ance with the agreement arrived at during the conciliation. There was no scope, therefore, for any further appeal.

In support of this contention reliance is placed on a decision of the Sind at Baluchistan High Court in the case of Muhammad Aqil v. Chairman, Sind Labour Appellate Tribunal (1974 P L C 194). All that was held in that case was that the decisions of the Labour Court on an application under section 34 of the Industrial Relations Ordinance do not fall within the meaning of an award under clause (ii) of section 2 of the said Ordinance and ware, therefore, not appealable under section 37 thereof.

Section 34 provides for an application by a Collective Bargaining Agent, employer or other workman for the enforcement of any right guaranteed or secured to it or him by or under any law or any award or Settlement.

This, however, is not the position here. The contention here is that since, by the Memorandum of Settlement, the parties had agreed to be bound by the decision of the Labour Court, no further appeal lay. The very fact that the agreement contemplated a decision of the Labour Court shows that there had to be a decision of a Labour Court, as held by the High Court, and therefore, it had to be in accordance with law. Therefore, the validity of that decision was also challengeable in appeal under section 31.

Learned counsel's contention that the application was really an application under section 34 is not borne out by the record nor can it be said that they went to the Labour Court for the enforcement of the Memorandum of Settlement.

In these circumstances, we are in agreement with the High Court that the appeal was maintainable and that the adjudication of the Labour Court was clearly under subsection (2) of section 32 of the Industrial Relations Ordinance.

This petition is., accordingly, dismissed.

Petition dismissed

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