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Appeal No. QSA‑241 of 1983, decided on 27th March, 1984.

‑‑Ss. 34 & 38 (3) read with Civil Procedure Code (V of 1908), O. XXIII, rr. 1 & 2‑Petition before Labour Court‑Withdrawal with or without permission to bring, fresh petition‑No provision in Industrial Relation‑a Ordinance, 1969‑Presence of formal defect or sufficient grounds necessary if O. XXIII, rr. I & 2 of Civil Procedure Code, 1908 applied‑Petition before Labour Court maintainable only to enforce right guaranteed‑‑Workers' Union making petition with prayer for directing employer to deduct subscription from pay of a number of workers‑Constitu tion of Workers' Union meanwhile amended providing recovery of subscription from those employees also whose pay was more than Rs. 800 p. m.‑Workers' Union due to such change in its constitution applying for withdrawal of its petition with per mission to bring afresh one‑Labour Court allowing application . On appeal Appellate Tribunal finding that there was no formal defect hence setting aside order of Labour Court remanded case to Labour Court for decision on merits.

Saleem Baig for Appellant.

M. A. Hamid Awan for Respondent.

Date of hearing : 20th March, 1984.

The titled appeal emerges from the decision, dated 10th April, 1983 passed by the learned Presiding Officer, Punjab Labour Court No. 3, Lahore at Ferozewala, whereby the grievance petition of the respondent Union was allowed to be withdrawn with permission to bring a fresh one.

2. In the grievance petition it ways prayed that the appellant be directed to deduct monthly subscription from the wages of 45 persons enumerated in the list Annexure 'A'. The necessity to bring the grievance petitions under section 34 and arisen because the appellant had refused to deduct the subscription on the ground that by being promoted the pay of the said employees had increased from Rs. 800 p. m. During the pendency of the petition the union amended the constitution and provided that subscriptions could be recovered by check‑off system from those employees also whose pay was more than Rs. 800. On account of this change the respondent applied for withdrawal of the petition with permission to bring a fresh one. So far as the Industrial Relations Ordinance, 1969 is concerned, there is no provision for unconditional withdrawal or withdrawal with permission to bring a fresh petition. Such a provision is made in Order XXIII, rules l and 2, C. P. C. If C. P. C. is applied, then there should be a formal defect or any other sufficient grounds. There was no formal defect. On the date the petition was brought there was no right guaranteed as at that time according to the constitution of the respondent‑Union, subscriptions could be deducted from the pay of only those employees whose pay was upto Rs. 800 per month. When there is no right guaranteed, it cannot be said that there is any formal defect in that petition. There was no other sufficient ground for withdrawal with permission to bring a fresh petition. Rather on the amendment of the constitution of the union, right could be said to have accrued to ask the appellant to deduct the subscriptions from the wages of the employees, whose pay was more than Rs. 800 per month and if the appellant had refused only then cause of grievance could have arisen to come to the Court under section 34 of the Industrial Relations Ordinance, 1969. Needless to say that a grievance petition under section 34 cannot be made unless there is a cause of grievance. The proper thing for the respondent was to withdraw the grievance petition uncoditionally, to ask the appellant to deduct the subscriptions from the wages of 45 employees, according to the amendment made in the cons titution of the union and if the appellant bad refused then to bring a petition under section 34, if in reality there was ground to ask the appellant to deduct the subscription by check‑off system.

3. As a result, the appeal is accepted and setting aside the impugned decision of the learned lower Court, the case is remanded for decision on merits.

A. E.

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