P L D 1966 (W (PLP)

SARDAR MUHAMMAD IQBAL, J.‑This is an appeal under section 12 (5) of the Industrial Disputes Ordinance, 1959 (hereinafter to be referred to as the Ordinance) against the order, dated the 11th of July 1964, passed by the Industrial Court of West Pakistan in Industrial Dispute No. 54 of 1963 published in the Gazette of West Pakistan, Extraordinary Issue, dated the 10th of August 1964.

2. The appellant, the Natural Gas Fertilizer Factory, Multan, is a project of the West Pakistan Industrial Development Corporation and is a public utility service within the meaning of section 2(k) of the Ordinance. There are more than one Trade Union, claiming to represent the workmen in the said factory. One of the Trade Unions is the Natural Gas Fertilizer Labour Union, the respondent in the appeal (hereinafter to be referred to as the Trade Union). There is another Union known as the Natural Gas Fertilizer Factory Employees' Union (here inafter to be called as the Employees' Union). Both the Unions are registered under the Trade Unions Act of 1926, where "Trade Union" is defined in section 2 (b) as: "Any combination, whether temporary or permanent, formed primarily for the purpose of regulating the relations between workmen and employers, or between workmen and workmen, or between employers and employers, or for imposing restrictive conditions on the conduct of any trade or business and includes any federation of two or more Trade Unions."

3. The respondent Trade Union served on the appellant a strike notice on the 11th of October 1963, under subsection (1) of section 18 of the Ordinance and raised a number of demands. The Conciliation Officer held the conciliation proceedings under section 5 ‑of the Ordinance, and since no settlement was arrived at, the Conciliation Officer issued a certificate to that effect under subsection (4) of section 5 to the parties on the 14th of October 1963. The respondent invoked the jurisdiction of the Industrial Court under section 5 (5) of the Ordinance for adjudication and determination of the disputes, and this application was registered as Industrial Dispute No. 54 of 1963. The Industrial Court was still seized of the disputes when the Employees' Union gave a strike notice under subsection (1) of section 18 of the Ordinance, raising a number of demands and some of them were the same as were pending adjudication before the Industrial Court in Industrial Dispute No. 54 of 1963. The Conciliation Officer started the conciliation proceedings, and as a result thereof a settlement was arrived at in the course of the conciliation proceedings. The Conciliation Officer sent a report thereof to the appropriate Government together with a memorandum of the settlement signed by the parties to the dispute. The respondent Trade Union was not a party to these proceedings. The appellant thereafter submitted its reply to the Industrial Court in respect of the demands which were pending adjudication there and raised a preliminary objection that it could not adjudicate on Demands Nos. 2 (a) (b), 5, 6 and 8 on the ground that a settlement had been arrived at in respect thereof in the course of the conciliation proceedings between them and the Emloyees' Union and the same was binding on the employers (appellant) and the workmen under subsection (2) of section

13. The Industrial Court, by its order dated the 11th of July 1964, over‑ruled the objection and held: " . . . . . . it is clear that under sections 13 and 19 of the Industrial Disputes Ordinance when a matter is once referred to this Court, it cannot be re‑opened unless the application is withdrawn by the petitioners or the award given by this Court becomes ineffective for some other reason."

4. Learned counsel for the appellant contends that there is no prohibition in sections 13 and 19 of the Ordinance to the effect that when a matter is once referred to the Industrial Court, it cannot be re‑opened unless the dispute is withdrawn by the Union or an award given by the Court becomes ineffective. It is true that there is no express bar, but the question to be seen is whether under the circumstances when a dispute is pending adjudication before the Industrial Court, the same can subsequently become a subject‑matter of conciliation proceedings before the Conciliation Officer under section 5 of the Ordinance. Learned counsel for the appellant contends that in a public utility service after a notice of strike is given under section 18 (1) of the Ordinance, the conciliation proceedings are deemed to have commenced and the Conciliation Officer is under a statutory obligation under section 5 of the Ordinance to hold conciliation proceedings, and that once the conciliation proceedings commence under section 5, they can terminate either by the parties arriving at a settlement or on the failure of the conciliation proceedings when the Conciliation Officer issues a Failure Certificate under subsection (4) of section

5. The case of the appellant is that since the settlement was 'arrived at, it was binding under section 13 on all persons who were employed in the establishment or part of the establishment, as the case might be, to which the dispute related, on the date of the dispute and all persons who subsequently became employees in that establishment or part thereof.

5. The whole case of the appellant depends on the fact whether the Conciliation Officer was in any way under an obligation to hold conciliation proceedings in respect of disputes which were already pending adjudication before the Industrial Court. The Conciliation Officer under subsection (1) of section 5 of the Ordinance is bound to hold conciliation proceedings only in those cases where an industrial dispute exists or is apprehended. A conciliation proceeding cannot commence in respect of a public utility service unless under section 16 (1) of the Ordinance a notice of strike under section 18 is received by the Conciliation Officer. The conditions precedent to the initiation of the conciliation proceedings, therefore, are that there is a dispute and the Conciliation Officer receives a notice of strike under section 18 (1). By the fact that a notice of strike is given it will not ipso facto become a notice under section 18(1). It has to be a valid notice of strike. If there is a dispute in existence as was in the present case, but there is no valid notice of strike the conciliation proceedings cannot be deemed to have commenced. The question to be examined, therefore, is whether is this case the Employees' Union gave a valid notice of strike under section

18. Under section 18(1)(d) of the Ordinance, no person employed in a public utility service can go on strike in breach of contract during the pendency of any conciliation proceedings and, if no settlement is arrived at in the course of such proceedings, before an application for adjudication of the dispute has bee made to the Court under subsection (5) of section

5. Again under section 19(b), no workman employed in any industrial establishment can go on strike during time pendency of proceedings before a Court. If a strike is commenced or declared in contravention of section 18 or section 19, it is, illegal under section 21, and any workman who commences, continues or otherwise acts in furtherance of a strike which in illegal under the Ordinance is punishable under section 23 with imprisonment for a term which may extend to six months or with a fine of one hundred rupees or with both. It is thus clear that the Employees' Union could not go on strike during the pendency of the disputes in respect of Demands Nos. 2 (a) (b), 5, 6, and 8 before the Industrial Court, and such a strike, if it had been commenced or declared, would have been illegal and every workman participating in it would have been guilty under section 23 of the Ordinance. Section 18 only provides that a person employed in a public utility service cannot go on strike without giving the requisite notice. The notice is, therefore, for the purpose of enabling such workmen to go on strike. In the instant case, since it was not legally possible for the workmen to go on strike, the notice given for the purpose had no end to achieve and, being only a fake one, had no legal effect.

6. The notice is illegal for another reason also. It has been given by the Employees' Union. The persons who gave this notice clearly intended that after the expiry of the specified period in section 18 the workmen would go on strike. It would clearly imply that they were instigating or inciting the workmen to take part in the strike after the expiry of the specified period. Under section 24 of the Ordinance, any person who instigates or incites others to take part in or otherwise acts in furtherance of a strike which is illegal under the Ordinance in guilty of an offence punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one hundred rupees, or with both. The notice by any workman or by a party composed of workmen, therefore, is illegal in its very inception. The notice being invalid, there could be no commencement of the conciliation proceedings under section 16 (1) of the Ordinance and all the proceedings, including the settlement arrived at before the Conciliation Officer under section 5, would, therefore, be void. If the Legislature provided that the settlement arrived at in the course of the conciliation proceedings is binding under section 13 of the Ordinance on the parties to the agreement, it is on the assumption that the settlement arrived at is within the powers of the Conciliation Officer and is not in excess of his powers. If it is in excess of the powers vested in him, it is to be wholly void in the eye of law and shall, therefore, be without legal authority and of no legal effect. The settlement arrive at between the appellant and the Employees' Union, therefore; could not be binding on the parties under section 13(2) of the Ordinance.

7. The matter can be looked at from another angle as well. If about a dispute pending before the Industrial Court, the Conciliation Officer is to assume jurisdiction on a fresh notice given by any other Trade Union, it will clearly mean that the same matter would be before two authorities, namely, the Industrial Court and the Conciliation Officer. The Conciliation Officer can bring about a settlement, while the Industrial Court is charged with the duty under section 10 of the Ordinance to adjudicate and determine any dispute in respect of which an application had been made to it under section 5(5) of the Ordinance. It will, therefore, result in multiplicity of proceedings which is ordinarily not done. The policy of the law has al‑ways been to confine the parties to one litigation and to discourage simultaneous entertaining and adjudicating upon two parallel litigations in respect of the same cause of action, the same subject‑matter and the same relief. This is to obviate the possibility of two contradictory verdicts. In the present case, the settlement was arrived at between the Employees' Union and the appellant at a time when disputes in respect of the same matters were pending before the Industrial Court. The decision of the Industrial Court may be quite different from the settlement arrived at before the Conciliation Officer. Under section 13, a settlement arrived at in the course of the conciliation proceedings is binding on the parties, and under section 14 an award of the Court becomes operative for a period of one year unless extended in due course of law. The Legislature could not intend such a state of inconsistency and uncertainty in matters affecting the rights of persons. The jurisdiction of the Conciliation Officer is, in our opinion, impliedly barred in respect of a matter which is already pending adjudication before the Industrial Court. A dispute comes before the Court only after the Conciliation Officer fails to bring about a settlement and he issues a certificate of failure. The Conciliation Officer, after issuance of the Failure Certificate, becomes functus officio. To bring the same dispute before the Conciliation Officer again through another Union is in fact to ask the Conciliation Officer to deal with a matter in which he has earlier failed to bring about a settlement and is pending adjudication before the Court. It would be tantamount to asking him to review his earlier order. There is no provision for review in the Ordinance and the Conciliation Officer, therefore, cannot initiate any proceedings for conciliation under section

5. If he were to do so, he has either to record a settlement or issue a certificate of failure. He cannot record a settlement, because in doing so he will be reviewing his earlier order whereby he had issued a Failure Certificate. There can at the same time be no purpose in issuing a fresh Failure Certificate to enable a party to take the matter to the Industrial Court when the same dispute is already pending there. In this view of the matter, the Conciliation Officer cannot assume jurisdiction under section 5 of the Ordinance in respect of a dispute which is pending before the Industrial Court.

8. The Industrial Court could not give effect to the settlement for another reason. There is no provision in the Ordinance for the Court to give effect to any settlement unless it is arrived at by the parties in the course of proceedings before the Court itself as contemplated in section

13. The Court cannot give effect to a settlement which is not inter parties. Under section 10 the Court is under an obligation "to adjudicate and determine any industrial dispute in respect of which an application has been made to it under subsection (5) of section 5.": There cannot be adjudication of .a matter unless there is an application of mind, and in the very nature of things since the matter is before the Court, it has to be a judicial determination of the matter in dispute. That being so, the Industrial Court could not give effect to the settlement arrived at between the appellant and the Employees' Union, because if it were to do so, it will be anything but an adjudication. The Court, therefore, has to proceed with the matter and decide it on the evidence produced before it unless there is a settlement arrived at between the parties before the Court itself as contemplated in section 13.

9. If, however, there is another Trade Union which is also interested in the same dispute, it can, instead of giving a strike notice which, as already observed, is not permissible in law, apply to the Industrial Court to be impleaded as a party can do so to safeguard the interest of the workmen whom it represents, because otherwise an award given by the Court is to affect not only the workmen represented by the Union which is a party but all the workmen who are employed in the establishment. There is; of course, no clear provision for impleading such a Union as a party, but under section 11 the Court is, for the purposes of adjudicating and determining any dispute, deemed to be a Civil Court and has the same powers as are vested in such Court under the Code of Civil Procedure, 1908. Under Order 1, rule 10, C. P. C., the Court has the power to add a person as a party and the Industrial Court can; in exercise of the same power, implead any other Union as the party.

10. Having given our serious considerations to the matter, we are of opinion that once a dispute is pending before the Industrial Court, the same cannot become the subject‑matter; of any conciliation proceedings. It is prohibited under law, and no Conciliation Officer otherwise is competent to entertain such a proceeding, there being no power in him to review his earlier orders.

11. In the view of the matter we take, there is no merit in the appeal, which is dismissed in limine. K. B. A. Appeal dismissed.