P L D 1961 Dacca 559 (PLP)

SATTAR, J.

‑In this case a Rule nisi was issued on the Government of East Pakistan and the Whole‑time Industrial Tribunal, Government of East Pakistan, to show cause why a writ of mandamus or any other appropriate writ of the like nature should not issue directing the Government of East Pakistan to cancel, withdraw and/or rescined Notification No. 1810‑Lab., dated the 22nd August 1958, with regard to demands Nos'. 26, 27 and 28 as published in the Dacca Gazette Extraordinary, dated 30th August 1958.

2. The facts relevant for the disposal of this Rule may be briefly stated as follows:‑ The East Bengal Mariners' Union, which is a Union of the Workers of the petitioner Company, on the 15th October 1956, sent a letter to the petitioner Company in which they made certain demands. On the 2nd November 1956, the Union threatened to go on strike if their demands were not met by the. 7th November 1956. Conciliation proceedings started, and during the pendency of the conciliation proceedings the workers on the 25th November 1956, went on strike which continued till the 7th December 1956. The Conciliation proceedings having failed the dispute between the parties was referred to a Tribunal consisting of Mr. Mahtabuddin Ahmad by the Government of East Pakistan by their Notification No. 1504‑Lab., dated the 6th December 1956. The Tribunal asked for written statements from the parties, and the Union in their written statements filed on 17th January 1957, demanded inter alia for direct recruitment of the lower ratings and for maintenance service books. They further claimed that the crews should be made permanent and none of them should be dismissed, suspended or otherwise punished without enquiry, and without giving them an oppor tunity to explain their conduct. It may be mentioned here that during the pendency of the proceedings before Mr. Mahtabuddin Ahmad he resigned, and, therefore, the Government by their Notification No. 521‑Lab., dated the 22nd June 1957, referred the dispute to a Tribunal consisting of Mr. A. Awal. On the 19th July 1957, on objection being raised on behalf of the petitioner Company with regard to the demands regarding direct recruit ment, maintenance of service books, and that the crews should be made permanent on the ground that they were not contained in the Union's Charter of demands, the Tribunal ordered that the additional demands would not be considered. It appears that after the aforesaid order was passed by the Tribunal, the Govern ment on being approached referred two specific demands, namely, Issue No. I : Should the system of direct recruitment and appoint ment be introduced in place of the present indirect system ? Issue No. 2 : Control and discipline over the lower ratings by the certificated ranks who are their superiors ; were referred to the Tribunal by their Notification No. 181‑Lab., dated 29th January 1958. The Tribunal, thereafter, not only considered the original demands contained in the Charter of demands of the Union, but also the two specific demands mentioned in the last notifi cation above referred to, and made an award on the 14th December 1957. It is after this that the petitioner Company moved this Court and obtained the present Rule.

3. Mr. Abu Md. Abdullah who appears for the peti tioner Company contends that the Tribunal had no jurisdiction to go into the demands Nos. 26, 27 and 28 of the Union as the reference to the Tribunal was bad in law, and, as such, the Tribunal had no jurisdiction to go into these demands at all. Mr. Abdullah's contention is that as the first reference of the dispute between the petitioner and their workers was in general terms and not with reference to specific demands or disputes the reference itself was bad, and, therefore, the additional demands though referred to the Tribunal specifically could not be gone into by the Tribunal as the Tribunal was from the beginning acting without jurisdiction.

4. Before we go into this question, it may be pointed out that the petitioner Company has not in their petition challenged the first reference. The rule that was issued by this Court was in regard to the demands Nos. 26, 27, and

28. It may further be pointed out that throughout the proceedings before the Tribunal the stand that was taken by the petitioner Company was that the additional demands could not be gone into by the Tribunal as they were not included in the Union's Charter of demands. Mr. Abdullah in support of his contention has relied on a recent decision of the Supreme Court in the cases of Pakistan Match Company Limited; Khulna v. Pakistan Match Factory Workers' Union and others (1). In these two cases their Lordships considered the question whether in a case where the reference to a Tribunal is in general terms without reference to specified disputes, the Tribunal was entitled to call for written statements from the workers specifying their demands. On a consideration of the facts of these two cases, it was held that. the references were bad in law, and the awards could not be sustained as in each of these two cases the Tribunal had adjudi cated upon points of dispute, which it had referred to itself. Their Lordships in that judgment have pointed out that before making a reference to a Tribunal the Government should know what is the precise matter in dispute upon which it proposes to invite a binding adjudication by the Tribunal. The facts of these cases show that in one of these cases, the dispute before the Concilia tion Officer was in regard to the question of payment of emergency allowances of Rs. 15 per month. But before the Tribunal in addition to the claim for payment of emergency allowances the workers demanded payment of bonus. In the other case the demand before the Conciliation Officer was in respect of certain new pay scales which the Company, it was claimed, had already declared, but before the Tribunal the demands were increased to fourteen out of which two had only reference to the matters before the Conciliation Officer. The reference in both the oases were made by the Government on the very day the Conciliation Officer reported his failure to bring about conciliation between the parties. It is in the circumstances that their Lordships have held that the references were bad in law. We do not think that the facts of the present case are similar to the facts of the two cases dealt with by the Supreme Court. Mr. Abdullah's further argument in this connection is that as the reference to Mr. A. Awal was in general terms without reference to specific disputes, the appointment of Mr. A. Awal is bad in law. The power to constitute Industrial Tribunals by an appropriate Government is contained in section 7 of the Industrial Disputes Act,. 1947, which says that the appropriate Government may constitute one or more Industrial Tribunals for the adjudication of the Industrial disputes in accordance with the provisions of this Act. Reference of disputes to Tribunals are made under section 10 of the Act. We are unable to see how, even if the first reference being in , general terms was bad in law, the appointment of Mr. A. Awal as a Whole‑time Industrial Tribunal under section 7 of the Act was also bad in law. So far as the present demands are con cerned, they were specifically referred by the Government, and, therefore, we are unable to agree with Mr. Abdullah that (1) P L D 1959 S C (Pak.) 337 the award in respect of them would be bad because the first reference was bad.

5. Mr. Abdullah then contends that section 10 of the industrial Disputes Act does not contemplate a second reference, and, therefore, the Tribunal had no jurisdiction to go into the demands referred to it by the Notification, dated the 29th January 1958. It is true that section 10 of the Act does not contain any specific provision to that effect. We, however, find that section 21 of the General Clauses Act provides "Where, by any Central Act or Regulation, a power to issue notifications, orders, rules, or bye‑laws is conferred, then that power includes a power, exercisable in the like manner, and subject to the like sanction and conditions (if any), to add t9, amend, vary or rescind any notification, order, rule or bye‑laws so issued." We do not see why the Government cannot call in aid the provisions of section 21 of the General Clauses Act in support of the view that they had the power to add to the disputes already referred to the Tribunal. The view that we are taking B in this matter finds support in the case of Adamjee Jute Mills Limited v. The Province of East Pakistan and others (P L D 1959 Dacca 872). We, therefore, hold that the Government had the power to add to the disputes already referred to the Tribunal by their Notification, dated the 29th January 1 958.

6. Mr. Abdullah then contends that the latest reference was made at a time when the award was being dictated the petitioner Company had been seriously prejudiced in meeting these demands which he described as a denial of natural justice. We, however, find that these demands did not come up before the Tribunal for the first time after the reference of the 29th January 1958. We have already pointed out that the Workers' Union in their written statement filed on the 17th January 1957, raised these questions, and in' reply to that the company by their additional written statement filed on the 30th January 1957, disputed these claims, and further asserted that they could not be raised as they had not been raised earlier. That is not all. The Union through the first witness examined on their behalf on the 18th September 1957; sought to prove that a'2r‑‑ct recruitment of lower ratings had already been intro duced by another Steamer Service Company, namely, Pak. Bay Company. This witness was cross examined on this point by the Company. We further find that the first witness examined on behalf of the Company also deposed with reference to these demands. After the reference was made by the Government the only questions that were raised before the Tribunal by the Company were with regard to the right of the Government to refer these disputes, and as to the Tribunal's jurisdiction to go into them, it was never claimed by the Company that in view of the late reference of these demands they needed time to meet them. In view of these facts, we are unable to accept Mr. Abdullah's argu ment that there has been any prejudice caused to his clients on account of the late reference of these demands.

7. Mr. Abdullah has then argued that the award in regard to these demands is not legal and valid. The relevant portion of the Tribunal's award to demand No. 26, which is the main demand in this connection, may be quoted. It says: "After considering all the points raised on both sides my Award is that the Company should introduce the system of direct recruitment and payment with a necessary condition of service laid down in writing to bind down the lower ratings for discipline and order in the vessel during voyage. Conditions of punishment of the nature of suspension, fine, discharge, dis missal in case, of disobedience of the order of serang, driver or manjhi may be laid down by the company in the appointment letter of the lower rating together with announcement of satisfaction allowance or increase of pay to those who can receive certificate from the serang, driver or manjhi about loyal and obedient discharge of all orders during voyage. Provision may also be made by the Company to allow extra man in the vessel during voyage from the waiting list as a guarantee against any of the crew falling ill or any of them being suspended by the upper rating during voyage. Power of suspension may accordingly, be delegated to the serang and driver during voyage only subject to final approval by a representative of the Company after going through the facts of both sides in their presence. The system should be introduced as quickly as possible, and not later than 31st December 1958, and it should be tried for a reasonable period of 6 months in the minimum, and if during this period difficulties are experienced by the Company and upper ratings and if the Company suffers any loss due to matter arising out of direct recruitment, the Company may place the facts before the Labour Commissioner whose decision shall be final. I recommend that all the lower ratings who are still in service and who have put in already more than 6 months' service should be registered Persons other than those who are serving, having reasonable experience and qualifications, may also be registered for filling up vacancies. Service book and Provident Fund scheme, leave benefits and other reliefs, which are avail able to the upper ratings, should also be made available to the lower ratings with effect from the date of introduction of the direct system of appointment. The details of the system may be worked out by a sub‑ committee consisting of representatives of both sides, namely, the Company and the Union. If the Union does not co‑operate, the Company will work out the details The Company shall frame rules for maintenance of order and discipline and efficiency on board vessels concurrently with the introduction of direct recruitment."

8. Mr. Abdullah's argument is that award in this experimental Form with the appointment of another arbitrator is not con templated by the Act. The Act defines award to mean an interim or final determination by an Industrial Tribunal of any industrial dispute or of any question relating thereto. No doubt the award in respect of demand No. 26 has been given on an experimental basis, and it has been said that if as a result of the introduction or of the system of direct recruitment of lower ratings the Company suffers any loss arising out of such direct recruitment, the Company may place the facts before the Labour Commissioner whose decision shall be final. These provisions, in our view, have been introduced in the award to meet the difficulties that were pointed out by the Company in connection with such direct recruitment and for their advantage. Having regard to the scheme envisaged, in the Industrial disputes Act to bring about settlement of disputes between the workers and their employers engaged in industries, and to bring about indus trial peace in the country, we are unable to see how this award is either illegal or in excess of jurisdiction. The whole policy of the Industrial Disputes Act is to secure and preserve good relations between the employers and their workmen. These demands were made by the workers with a view to get rid of C hardships they suffered at the hands of the upper ratings, and if, therefore, the Tribunal thought that this measure might be introduced as an experimental one for the time being, and if any hardship was caused to the Company the same could be brought to the notice of a responsible officer of the Government who would then give his decision which would bind both the parties. We do not see how such an award is not in accordance with the scheme of the Act. We, therefore, do not find any substance in, this contention of Mr Abdullah. Mr. Abdullah has not urged any9 other point in support of the Rule.

9. The result, therefore, is that this Rule is discharged, but having regard to the facts of this case, we direct that each party will bear its own costs. ISPAHANI, J. ‑ I agree. K. B. A. Rule discharged.