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Application No. 59 of 1973, decided on 2nd May 1973.

--- S. 22-Collective Bargaining Agent-Two rival registered Trade Unions-Management entering into settlement with applicant-Union Settlement partly implemented---Management, in circumstances, held, having recognised status of applicant-Union as Collective Bargaining Anent while entering into settlement could not subsequently raise plea of its locus standi on application for enforcement of, remaining part of settlement.

-- S 2(xxiv)-Settlement arrived at in conciliation proceedings, and signed by conciliator and both parties and partially acted upon-Validity challenged subsequently on plea of duress and coercion at time of settlement-Oral evidence in presence of document, held, cannot be relied upon-Settlement being valid held, binding upon parties.

Ali Amjad for Applicant.

A. R. Kazi for Respondent.

This is an application under section 34 of Industrial Relations Ordinance brought by Security Papers Limited Workers Union against Security Papers Limited for implementation of Settlement dated 21-2-72 and direction that the workers shown in Annexure 'A' be absorbed in the vacancies already present in place of those appointed or employed by the respondents in the wean while and that in future all vacan cies should be filled in up first from the list Annexure A'.

The facts leading to this matter are that applicant is a Registered Trade Union and is the Collective Bargaining Agent of workmen of the respondents. On 21-2-72 the respondents entered into a settlement with the applicant, under which the respondent agreed to re-instate 50 workmen according to the list provided by the applicant. It further agreed that the respondents according to the vacancies in furture would absorb other workmen. It was further agreed that the allocation of duty should be at the option of the Management. In part performance of the settlement the respondents re-instated 50 workmen but have refused to implement other terms of the settlement. In September, October and December 1972, 4 workers were employed, namely Mr. Pervaiz (as timekeeper) Mir Afsar (as helper) in October 1972, Mohd Gulazar (as helper) in October and Munawar Sultana (as lady researcher) in December 1972. On 15-12-72 the respondents also issue;' notice asking for applications for a post of Assistant Rag Boiler and peon. The respondents have deliberately refused to imple ment the terms of settlement as above is applicant sent a letter on 3-1-7w to the respondent on the subject requesting that the settlement dated 21-2-72 should be implemented in filling up the vacancies with the respondents and the remaining workers as per list attached with the settlement should he employed with the respondents. The respondents have turned a deaf car to and wilfully violated the terms of the settlement, where rights were guaranteed under the settlement dated 21-2-72 to the applicant that all workers included in the list marked Annexure A' be absorbed according to the vacancies in future which the applicant now seeks to enforce.

The respondents have contested the case and filed reply statement wherein they admit registration of applicant's Union but deny their status as Collective Bargaining Agent. It is further admitted by the respondents that there was settlement dated 21-2-72, between some ex-members of the Union and officers of the respondents in the office room of Mir Rasool Bux Talpur, then Senior Advisor to the Government of Sind and the Officers of the respondents agreed to take back 50 ex workers in service of the respondents who had been removed from service in about 1969 and 1970. Defence is that the said settlement dated 21-2-71 cannot be called "settlement" within the definition of the term given in the I. R. O. The Union of workmen, which came in existence in the year 1969, became defunct with the removal from service of its office-bearers in 1'969. The workmen in service established another Union called "Security Paper Employees' Union" which has been functioning till the present day and it is that Union 40 which has been recognised by the respondent as Collective Bargaining Agent. The applicants have no locus stands to make this application which is not legally entertainable. Even all except seven of the 50 ex-workmen taken back in service on 21-2-1972 including Mr. Zarar Ahmed are members of fie Security Papers Employees' Union which is the Collective Bargaining Agent of the workmen formed after removal from service of the office-bearers of the applicant-Union.

Points for determination in the instant application are:-

(1) Whether the applicant-Union is the Collective Bargaining Agent of the workers of the respondents and the application is maintainable in law

(2) Whether the settlement dated 21-2-72 is the settlement within meaning of Industrial Relations Ordinance and is binding on the parties

1. Yes. 2. Yes.

Point No l.-As to this, there is sworn testimony of Zarar Ahmed Exh. 1 on behalf of applicants-Union. He has sworn that applicant Union is a registered Trade Union and is alive and active organisation. It has 157 members on its roll and they have paid subscription of the Union. He has further sworn that applicant-Union is the Collective Bargaining Agent. Further case of the applicant is that settlement dated 21-2-72 was arrived at before the conciliator in the course of conciliation proceedings and that a part of the settlement has been implemented by the respondents in re-instating 50 workmen. The respondents admit this position that the settle ment dated 21-2-72 Exh. 13 was arrived at and part of the settlement was implemented by the respondents by re-instating 50 workmen. By entering into the settlement Exh. 13 with applicant impliedly means that the respondents (Employers) have recognised the status of applicant. Union as Collective Bargaining Agent Admittedly there was no referendum till the present appli cation was instituted before this Court. It has been held in 1971 P L C 516 by Sind Labour Appellate Tribunal that Registered Trade Union recognized by employer can perform functions of Collective Bargaining Agent:

Section 22, read with section 5' of the Industrial Relations Ordinance, 1969 makes it very clear that where there are two registered Trade Unions, the one recognized by the employer can perform the functions of a Collective Bargaining Agent. Subsection (2) of section 22 of the ordinance does not cast any duty on any of the Unions to apply to the Registrar to hold a secret ballot. It appears that the language of subsection (2) of section 22 of the Ordinance is only permissive and not mandatory. It is to meet a situation where none of the Trade Unions applies to the registrar for a ballot that section 52 of the Ordinance comes into operation. If the ingredients of section 52 of the Ordinance are fulfilled by any of the Unions, it can perform the functions of a Collective Bargaining Agent.

I am therefore, of the opinion that the respondent have accepted the status] of applicant-Union as Collective Bargaining Agent. The evidence of Hafeez Ahmed Exh. 14 and Salahuddin Exh. 12 is of no avail to the defence.1 Admittedly, Hafeez Ahmed has strained relations with applicant-Union. The facts and circumstances on record lead me to conclude that the applicant is the Collective Bargaining Agent till the institution of the present application. Findings accordingly.

-Zarar Ahmed on behalf of applicant has been examined while respondents have examined Mr. Muham-nad Rafiq Khan Ghori Conciliator Exh. 7 Salahuddin Exh. 12, their Manager, and Hafeez Ahmed Exh. 4. I reproduce definition of settlement in section 2 of clause (xxiv) in Industrial Relations Ordinance, 1,969 as under:

"Settlement" means a settlement arrived at in the course of conciliation proceedings, and includes an agreement between an employer and his workmen arrived at otherwise than in the course of the conciliation proceedings where such agreement is in writing, has been signed by the parties there to in such manner as may be prescribed and a copy thereof has been sent to the Provincial Government, the conciliator and such other person as may be prescribed.

In the instant matter settlement Exh. 13 was arrived at during the course of conciliation proceedings and it has been signed by both parties before concilia tor. The conciliator has also signed it. I produce terms of "settlement" Exh. 13 below:

"(1) The management agreed to re-instate 50 workmen (including women) according to the list (enclosed) provided by the Union provided that these workers would not claim any pay, allowances and increments fcr the period except one month's wages

(2) The other workmen would be absorbed according to vacancy in future and their seniority.

(3) The allocation of duty would be at the option of Management "

The settlement contains main two parts. The evidence of Zarar Ahmed Exh. 1 and conciliator Muhammad Rafiq Khan Ghori coupled with admission of the respondents fully proves the contents of the settlement Exh. 13. Their evidence further establishes that Exh. 13 was voluntarily executed by the employer. The implementation of first part of the settlement Exh. 13 further proves that they arrived at settlement Exh. 13 without any coercion or duress, It was obtained under duress, why first part of it viz. 5 ex-workmen were re instated in service. Had it been obtained under duress, the employers ought to have moved the machinery of Labour Law to get the 'settlement' rejected immediately. They lay in slumber for more than a year and took no action. For the first time during the persent proceedings the respondents have taken in their reply that Exh. 13 was obtained under duress. This plea appears to me an afterthought and cooked up. I am inclined to believe that Exh 13 was obtained with the free consent of the respondents. There is reason to disbelieve the applicant's witness Zarar Ahmed. Witness Mr. Muhammad Rafiq Khan (conciliator), Deputy Director, Labour, is an independent person. I have been much impressed by his evidence. His evidence clearly suggests the "settlement" was arrived at with free consent of the parties. The settlement does not bear signature of Mr. Mir Rasool Bux Talpur, the then Senior Advisor. Nothing has been brought on record to discredit evidence of Mr. Mohd. Rafiq Khan. His evidence falsifies defence. I am satisfied with his evidence and place full reliance on his evidence. No reliance can be placed on oral and interested word of Salahuddin Exh. 12 witness, a servant of the respondents. It cannot supersede documentary evidence. The settlement Exh. 1.3 appears to be valid within the meaning of Industrial Relations Ordinance. I, therefore, hold that the settlement is lawful, valid, and binding on the parties. The respondents are bound to implement the terms of the settlement. Consequently I allow the application and order the respondents to implement second part of the settlement and give preference to the ex-workmen and absorb them in service for the Annexure 'A' first whenever vacancies occur. Award accordingly.

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