P L D 1964 Supreme Court 633 (PLP)

Failure certificate may not only be issued immediately at close of period of 28 days but at any time later as well. (b) Interpretation of Statutes‑Intermediate proceedings under a statute‑[Conciliation proceedings under S. 5 (4), Industrial Disputes Ordinance (LVI of 1959)] Processes of law cannot be defeated by applying "the most restricted" meanings to provisions for such proceedings. Dingomal N. Ramchandani Senior Advocate Supreme Court (Percy D. Ramchandani Advocate Supreme Court with him) instructed by S. M. Hanif Attorney for Appellants (in both appeals). Muhammad Saeed Advocate High Court appearing under rule 5, Order IV, Supreme Court Rules, 1956, (K. T. Doshi Advocate Supreme Court briefed with him) instructed by K. A. Ghani Attorney for Respondent No. 1 (in both appeals). Respondent No. 2 (in both appeals): Ex parte. Date of hearing: 19th May 1964. CORNELIUS, C. J.--‑This judgment will dispose of two Civil Appeals viz:‑ (1) Civil Appeal No. K‑39 of 1963. (2) Civil Appeal No. K‑40 of 1963. In the first of these cases, a body describing itself as the Hotel Metropole Employees' Union issued a charter of demands to the Management of the Hotel Metropole, which being ignored, the said Union moved the Labour Commissioner to settle the dispute which had arisen. The conciliation proceedings were conducted by an Assistant Labour Commissioner, and several meetings were held. The objection was raised by the Management that the said Union consisted mostly of ex‑employees of the Hotel and did not represent the Hotel's employees, who had a Union of their own, which the Management had recognised. It was denied that the Hotel Metropole Employees' Union had locus standi to raise a dispute with the Management, and on this basis, it was contended that there was no "industrial dispute" within the meaning of the Industrial Disputes Ordinance, 1959, with which the conciliation authority could deal. The Assistant Labour Commissioner referred the matter to the Labour Commissioner with a forwarding note ending with the words. "As a result of the Management's attitude I have no alternative but to declare a failure." Despite approaches to the Labour Commissioner, no failure certificat5 as required by section 5 (4) of the aforesaid Ordinance was issued, and eventually, the Hotel Metropole Employees' Union filed a petition for a writ of mandamus to issue to the Assistant Labour Commissioner concerned, to require him to declare a failure. In the second case, a body describing itself as the Karachi Cafe and Hotel Employees' Union issued a charter of demands to the Management of the Palace Hotel, Karachi, and the matter went before an Assistant Labour Commissioner for conciliation. The Hotel Management took the plea that the aforesaid Union was not recognised by them, and that it consisted mostly of ex‑employees of various Hotels and Cafes in Karachi, and was thus not representative of their present body of employees. The plea was raised, as in the other case, that for absence of locus standi in the Union which had raised the demands, there was no industrial dispute. There were a number of meetings, the last being on the 2nd May 1961, but no settlement could be reached. Despite this and despite approaches to the Labour Commissioner, no failure certificate as required by the law was issued. Accordingly the Union filed a petition for a writ, to gain the same relief as in the other case. The two cases were heard together in the High Court, and after referring to the relevant provisions in the Ordinance aforesaid and the Rules thereunder, the learned Judges reached the following conclusions viz:‑ ‑ (1) That the Conciliation Officer is not competent to adjudicate between the parties to a dispute; he is to strive to bring about a settlement and if within 28 days he cannot do so he must issue a failure certificate; (2) a Conciliation Officer may decline to hold proceedings, and one of these grounds may be that the Union raising the demands is non‑representative in character; in effect, in these cases, the Conciliation Officer had found that there was an industrial dispute; (3) in each case, the Conciliation Officer had recorded his conclusion ‑ of failure, and it was his duty to declare to this effect, so that a reference to the Labour Commissioner was unnecessary; and (4) the Industrial Disputes Ordinance is not to be read as if the failure certificate can be issued at no later time than the close of the period of 28 days following after the dispute comes before him, but such a certificate may be issued at any time after the close of that period. Accordingly, the desired writs were issued in each case, and the Managements of the two Hotels have appealed by special leave. Mr. Dingomal attempted to refer to the provisions of the Trade Unions Act, and the definition of "industrial dispute" contained in the Ordinance, in support of the proposition that the two Unions in these cases could not raise `industrial disputes' on behalf of the present employees of the two Hotels. The point appeared to us to be irrelevant. The question before the Conciliation Officer in each case was one on which the views of the contesting parties were irreconcilable, and therefore a settlement was virtually impossible. The point of locus standi, and the consequential point of the existence of an "industrial dispute" were, in the circumstances, matters requiring adjudi cation, which an Industrial Court appointed under Ordinance is to deliver, in the first instance, under the existing law. Adjudi cation is wholly outside the purview of conciliation, and once the Conciliation Officer saw that a settlement in respect of these A points, which are points of law, was not possible, his duty plainly was to declare a failure under section 5 (4). In each case, he expressed an opinion to that effect, but, as the High Court has pointed out, he took a course not warranted by law, E namely, he referred the cases to his superior officer, to who he left it to make the necessary declaration, or not to make it, a he pleased. The only other point mentioned by Mr. Dingomal was that the failure certificate could be issued only immediately upon the close of the 28 days period aforesaid. His reliance was upon 'the words of the statute, but it is clear that the mote practical and reasonable view is that taken by the High Court. The processes of law cannot be defeated by applying the most restricted meanings to provisions for intermediate proceedings. We consider that the writs have been rightly issued in this case, and we accordingly dismiss these appeals, with costs. A. H. Appeals dismissed.