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High Court Appeal No.57 of 1979 decided on 28th May, 1986.

‑‑‑S. 5‑‑Section 5 of Act only provides a penalty in case of failure of company to comply with provisions of Act‑‑Act does not prescribe a procedure for enforcement of any right guaranteed under Act.

‑‑‑Ss. 2, 22, 34 & 52‑‑Collective Bargaining Agent‑‑Application under S.22‑‑Maintainability‑‑Section 22 of Ordinance could not be read as to nullify provisions of S. 52‑‑Both provisions, held, were independent provisions and S.52 would be attracted before registration of a Collective Bargaining Agent‑‑Registrar issuing a certificate to Union of being Collective Bargaining agent during pendency of proceedings‑‑Application moved by Union, held, was maintainable under S. 52 of Ordinance.

‑‑‑Ss. 34 & 35‑‑Companies Profits (Workers Participation) Act (XII of 1968)‑‑Scheme‑‑No industrial dispute existing between parties‑‑Collective Bargaining Agent moving Labour Court for enforcement of a right guaranteed by law‑‑Provisions of Act XII of 1968 do not provide any machinery for enforcement of a right and no forum is provided thereby for redress of grievances‑‑Labour Court, held, would have jurisdiction under S. 34 of Ordinance XXIII of 1969 to give a relief to Collective Bargaining Agent which had been guaranteed under Act itself even if no industrial dispute existed between parties.

Muhammad Aqil v. Sind Labour Appellate Tribunal acid another

P L D 1978 Kar. 649 and Karachi Pipe Mills Ltd. v. Sind Labour

Appellate Tribunal and 2 others P L D 1984 Kar. 503 ref.

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‑‑‑ Special Law to override general law.

‑‑‑S. 34‑‑Companies Profits (Workers' Participation) Act (XII of 1968)‑ Law Reforms Ordinance (XII of 1972), S.3‑‑High Court appeal‑‑Order rejecting objection taken by employer about jurisdiction of Labour Court to enforce a right guaranteed to Trade Union by Law‑‑Such order, held, enunciated correct legal position‑‑High Court Appeal against order mingle Judge dismissed.

Cysnamid (Pakistan) Limited v. Mirza Irtiza Baig 1974 PLC Note 109 at p. 59 ref.

Mazharuddin Siddiqui for Appellant.

Hameed Siddiqui for Respondents.

Date of hearing: 6th stay, 1986.

‑The respondent No.2 moved an application under section 34 of the Industrial Relations Ordinance, 1969 (hereinafter referred to as the Ordinance) in the Sind Labour Court stating therein that they are a registered Trade Union and Collective Bargaining Agents within the meaning of sections 22 and 52 of the Ordinance. In the year 1974 the appellants have constituted a Board of Trustees in terms of Companies Profits (Workers Participation) Act, 1968 (hereinafter referred to as the Act and have provisionally allocated an amount of Rs.1,25,000 and this Board has distributed this amount to the workers. The respondent No.2 demanded the Workers Participation Fund of the year 1973‑74 but the appellants have refused to pay the same. A preliminary objection was taken before the Labour Court as to the maintainability of the application but this objection was rejected and it was observed that section 34 of the Ordinance gives a right to the respondent No. 2 to seek enforcement of rights. Ultimately by the order, dated 24‑12‑1975 the application of the respondent was allowed and the appellants were directed to pay the Workers Participation Fund in accordance with provisions of Act 12 of 1968 within 15 days.

2. The appellants being aggrieved against the decision of the Labour Court filed a Constitutional Petition which was disposed of by a learned Single Judge of this Court on 10‑‑4‑1979. The matter was remanded to the Labour Court to determine the question of the petitioner being an Industrial undertaking or not, and then pass the final order. The objections taken by the appellants about the jurisdiction of the Labour Court and the application of the Ordinance were rejected by the learned Single Judge.

The appellants have challenged the orders of the learned Single Judge in this Inter Court Appeal.

3. We have heard the learned counsel for the parties. Learned counsel for the appellants have raised the following contentions:

(i) That the Labour Court had no jurisdiction to adjudicate in the matter in view of the specific provisions of sections 5, 8 and 10 of the Act;

(ii) Application under section 34 of the I.R.O. was incompetent as the respondent No.2 was not a Collective Bargaining Agent; and

(iii) Application under section 34 was not maintainable as there was no pre‑existing right which was sought to be enforced.

In order to appreciate the contentions of the learned counsel, it is necessary to refer to the provisions of the Act as amended by Ordinance XII of 1970.

Section 3 of the Act provides:‑

"3. Establishment of Fund.‑‑(1) Every company to which the scheme applies shall‑‑

(a) establish a Workers Participation Fund in accordance with the scheme as soon as the accounts for the year in which the scheme becomes applicable to it are finalised, but not later than nine months after the close of that year; and

(b) pay every year to the Fund, nor later than nine months from the close of that year; two and one half per cent of its profits during such year.

(2) The amount paid to the Fund under clause (b) of subsection (1) in relation to a year shall be deemed to have been allocated to the Fund on the first day of the year next succeeding that year.

Under section 4 there shall be constituted a Board of Trustees and the powers and functions of the Board have been mentioned therein.

According to section 5 where any Company fails to comply with the provisions of section 3, the Central Government may, by order in writing require it to comply with those provisions within such time as may be specified in the order. Under subsection (2) of section 5, if the company in relation to which an order under subsection (1) has been made, fails to comply therewith within the time specified therein, every Director, Manager or other officer responsible for the management of the affairs of the company shall, if the Central Government by order so directs, pay by way of penalty a sum which may extend to ten thousand rupees and in the case of a continuing failure, a further sum which may extend to one thousand rupees for everyday after the first during which the failure continues and under subsection (3) a penalty imposed by an order under subsection (2) shall, if it is not paid within the time specified in the order, be recoverable as an arrear of land revenue.

4. Learned counsel for the appellant has made emphasis on section 5 of the Act and submitted that as a procedure has been provided under the Act itself therefore, ho Court had the jurisdiction to decide the dispute between the parties. This contention is without any A substance. Section 5 of the Act is only a penal section and it provides a penalty in case of failure of the company to comply with the provisions of the Act. The Act does not prescribe a procedure for the enforcement of any right guaranteed under the Act. In the same context, it is contended that section 10 of the Act overrides other laws. According to section 10 the provisions of this Act shall have effect notwithstanding anything contained in any other law for the time being in force or in any contract or the memorandum or articles of association of a company. The provisions of section 10 make it clear that it does not oust the jurisdiction of the Labour Court to give relief to an aggrieved person under section 34 of the I.R.O. Similarly sections 8 and 9 of the Act on which reliance has been placed by the learned counsel for the appellants do not affect the jurisdiction of the Labour Court. Under section 8 the Central Government may, by notification in the official Gazette, direct that all or any of its powers or functions under this Ordinance may, subject to such limitations, restrictions or conditions, if any, as may he specified in the notification, be exercised or performed also by any officer subordinate to it or by any authority so specified. Section 9 of the Act empowers the Central Government to make rules to carry out the purposes of this act. We, therefore, repel the first objection taken by the learned counsel.

As regards the second contention of the learned counsel, it is contended that the respondent No.2 is not a Collective Bargaining Agent and, therefore, an application under section 34 of the I.R.O. was not maintainable. It is further contended that an application by an individual workman should have been filed under section 25‑A of the Ordinance. This contention has also no force. In the present case the respondents have moved the application on behalf of the employees of the appellants and such application was maintainable under section 34 of the Ordinance. It is contended that the certificate of Collective Bargaining Agent dated 5‑12‑1975 was produced by the respondent No.2 after the conclusion of arguments before the Labour Court and when the application was moved the respondent No.2 was not Collective Bargaining Agent within the meaning of section 2(v) of the I.R.O. This contention is equally without any force. No doubt when the application was filed by the respondent it was not registered but under section 52 of the Ordinance such application could be moved by the respondent No.2. Under section 52 of the Ordinance any act or function which is by this Ordinance required to be performed by or has been conferred upon a Collective Bargaining Agent may, until a Collective Bargaining Agent has been certified under the provisions of this Ordinance be performed by a registered Trade Union which has been recognised by the employer or employers. It is not disputed that the respondent No.2 was a registered Trade Union at the time when the application under section 34 of the Ordinance was filed before the Labour Court. Under section 22 of the Ordinance the Registrar shall certify a Collective Bargaining Agent for an establishment or group. Section 52 of the Ordinance is an independent provision and it comes into play if the collective bargaining agent has not been registered by the Registrar. Section 22 of the Ordinance cannot be read as to nullify the provisions of section 52. Both are independent provisions and section 52 would be attracted before the registration of a collective bargaining agent. In the instant case though the Registrar had issued the certificate during the pendency proceedings but irrespective of that certificate the application moved by the respondent No.2 was maintainable.

Learned counsel for the appellants has referred to the case of Messrs Adam Tea Limited v. Sind Labour Appellate Tribunal and 3 others in support of the contention that section 52 is not attracted but we are of the opinion that as no industrial dispute has been raised in the case, therefore, this authority is not applicable to the facts of the present case. The respondent No.2 has moved the Labour Court for enforcement of a right guaranteed to it. The respondent No.2 is a registered Trade Union and it is not contended that there are other unions in the company of the appellants at Karachi, therefore, the respondent No. 2 could move the Labour Court. Section 52 is not controlled by section 22 of the Ordinance.

It is next contended that application under section 34 of the Ordinance was not maintainable, as no industrial dispute has been raised by the respondent. Industrial dispute has been defined in section 2(xiii) of the Ordinance and it means any dispute or difference between the employees and employers or between employers and workmen, which is concerned with the employment or non‑employment pr the terms of employment or the conditions of work of any person and it is not in respect of the enforcement of any right guaranteed or secured to him by or under any law, other than this Ordinance, or any award of settlement for the time being in force. In the instant case no industrial dispute has been raised by the respondents but they have claimed the enforcement of a right guaranteed to them under the Act.

Under section 34 of the Ordinance any Collective Bargaining Agent or any employer may apply to the Labour Court for the enforcement of any right guaranteed or secured to it or him by or under any law or any award or settlement.

As observed earlier the application of the respondent No.2 was maintainable under section 52 of the Ordinance. So the respondent No.2 could move the Labour Court for the enforcement of a right guaranteed in their favour by a law. It is contended by the learned counsel for the appellants that no right has been created in favour of the respondent No.2, therefore, the Labour Court has no authority to decide the dispute. In fact there was no industrial dispute. A right had been guaranteed under the Act itself and the respondent No.2 had moved the Labour Court for the enforcement of that right. The Labour Court has not to adjudicate or determine the industrial dispute as required under section 35 of the Ordinance but only to enforce a right which has been guaranteed to the respondent under the law.

Clause 3 of the Schedule of the Act guarantees the workers for getting the benefits under the Scheme and thus, the finding of the learned Single Judge that it is an established right and can be enforced under section 34 of the Ordinance is not open to any exception. Learned counsel for the appellant has stated that the Act is a special law and it overrides the general law. There is no dispute with this proposition of law but as observed earlier the Act does not provide the machinery for the enforcement of a right guaranteed under the Act itself. Had there been any machinery for the enforcement of such right then the contention of the learned counsel for the appellants would have force. In the absence of any forum for the redress of grievance the Labour Court had the jurisdiction under section 34 to give a relief to the respondent which has been guaranteed under a law. In the instant case the Labour Court had not adjudicated an industrial dispute or a right but only made a direction for the enforcement of a right.

Learned counsel for the appellants has referred to the case of Muhammad Aqil v. Sind Labour Appellate Tribunal and another reported in P L D 1978 Kar. 649 and the case of Karachi Pipe Mills Ltd. v. Sind Labour Appellate Tribunal and 2 others reported in P L D 1984 Kar. 503.

In Muhammad Aqil's case, it was observed that section 34 merely provides for enforcement of pre‑existing rights and not determination or adjudication of rights between the parties. In this view of the matter the decision of the Industrial Court under section 34 would not fall within the meaning of the award as defined in I . R. O. , for award F is determination of an industrial dispute or any matter relating thereto and not enforcement of a recognized right guaranteed to a workman under any law, settlement or award.

The observation made in this authority is based on the law itself and there is no cavil with the observation made in this authority. It is further held in this case that an order under section 34 made by the Industrial Court is not an award but a decision and, therefore, it was not appealable under section 37 of the Ordinance.

The learned counsel himself states that as the order of the Labour Court was not appealable, therefore constitution petition was filed. In the instant case also the order of the Labour Court was not an award but a decision given by it for the enforcement of an existing right guaranteed by a law.

Learned counsel for the respondent has referred to the case of Cysnamid (Pakistan) Limited v. Mirza Irtiza Baig reported in 1974 PLC Note 109 at p. 59 where a contrary view has been taken.

We endorse the view of the learned Single Judge and hold that the correct legal proposition has been enunicated in view of the clear provisions of the Act itself.

5. The upshot of the above discussion is that this appeal has no force and the same is dismissed with no order as to costs.

M.Y. H. / 4974/Lb Appeal dismissed.

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