1977 PLP 6 (PLC)

(1) 1963 P L C 627 (2) 1964 P L C 362 (3) P L D 1963 Dacca 856 (4) P L D 1966 S C 731 (5) 1963 P L C 1106 (6) 1965 P L C 771 been recognised as such by the respondent-employers, by agreement in writing, in 1951, and again in 1958. The constitution of the appellant-Union could not be challenged under the Trade Unions Act, 1926, as amended by Ordinance XIV of 1960, because its status was governed by the unamended Act, read with East Pakistan Trade Unions (Recognition) (Third) Ordinance, 1958 (Ordinance LIX of 1958), which held the field at the relevant time. The Supreme Court, after examining the definition of "Industrial Dispute" as defined in clause (h) of section 2 of the Industrial Disputes Ordinance of 1959, was pleased to observe that it was clear from this definition that a Union could not be a party to an industrial dispute, unless by some provision of law, it is vested with a right to speak on behalf of workmen and after further ex amining the provisions of subsection (5) of section 5 of the Ordinance their Lordships observed that the question that fell for determination before them was whether the association in law was a party to the industrial dispute. About the composition and constitution of the association and its recognition it was found that the recognition was not accorded to the employees' association under section 28-B of the Trade Unions Act of 1926 and under Chapter III-A of the Act which was inserted by section 12 of Ordinance 14 of 1960. At the same time it was found that the conditions of subsection (2) of section 22 of the Trade Unions Act were not satisfied in the case of employees association. About the recognition of the Union which was duly registered under section 8 of the Act since 1949 and was in posses sion of a certificate under section 9 of the Act, it was observed that the recognition of the Union by the employers was governed by the provisions of section 3 of the East Pakistan Trade Unions (Registration and Recognition) (Third) Ordinance of 1958, and it was found that the agreement of recognition which was given to the Union from time to time had expired by eflux of time before the dispute was taken to the Industrial Court and as such the Union had lost its representative capacity as a recognised Union.

9. The objection of the employer, that the Union had to obtain proper recognition under the Trade Unions Act of 1926 as amended in 1960, was not allowed to prevail. It may be useful to reproduce here the enunciation of the law made by their Lordships of the Supreme Court in the concluding paragraph: The upshot of the whole discussion is that the appellant-Union having ceased to occupy the character of a recognised Union, had no locus stands, either to raise an industrial dispute, on behalf of its members, or to take it to the Industrial Court. In the face of this finding, the other points raised in the appeal, do not call for decision. The appellant's petition in the High Court was, therefore, rightly dismissed and we dismiss the appeal with costs. From the above conclusions in the judgment of the Supreme Court it is apparent that the appellant-Union before their Lordships of the Supreme Court was non-suited for the main reason that it had ceased to occupy the character of a recognised Union. No such point was urged either before the Industrial Court or before us in appeal that the respondent-Union did not enjoy the recognition of the Management or that any such recognition was necessary in West Pakistan as was required by section 3 of East Pakistan Trade Unions (Registration and Recognition) (Third) Ordinance, 1958. What has been objected to before us is that the Union has committed certain irregularities about the conduct of elections or procedural mattes, which do not affect the constitution of the Union or its recognition by the employer. In our opinion, these are only procedural matters regarding the office routine and other matters pertaining to indoor Management of the Union and do not affect its valid existence.

10. The recognition of a Trade Union is required to be done by an employer under the provisions of section 28-B of the Trade Unions Act of 1926 as amended by Trade Unions (Amendment) Ordinance, 1960. The provisions of this section are mandatory and if a Trade Union fulfils the conditions laid down under section 28-B then it is obligatory upon the employer to recognise it as such and in case an application has been made by the Union and a recognition is not forthcoming within a period of three months from the date of the application is a Union is given a right to approach the Industrial Court under section 28-C of the Act for this purpose. A recognised Trade Union has been given a right under section 28-D to negotiate with the employer in respect of matters connected with the employment of all or any of its members, and the employers shall receive and reply letters of, and grant interviews to the executive of such a Union, in connection with any such matter except on issues on which as a result of previous discussion or correspondence the parties have arrived at a conclusion. Under section 28-E the Registrar or the employer may, after intimating the Trade Union concerned, apply in writing to the Industrial Court for the withdrawal of recognition of the Trade Union and the grounds on which a withdrawal can be allowed have been enumerated in this section. We were not told on behalf of the appellant that any such applica tion was made for the withdrawal of the recognition of the Union either by themselves or on behalf of the Registrar to the Industrial Court and in the absence of any such indication on the record we are inclined to hold that the respondent is a duly recognised Union of the appellant. The Industrial Court was, therefore, right to say that the strike notice of the Union was perfectly valid.

11. We want to point out at this stage that an incorrect statement of fact was made by the appellant in its written statement while raising preliminary objections that the Industrial Court had already decided by its order dated the 27th of November 1963 that this Union was not a legally constituted body, but the Industrial Curt, in its order under appeal, has held that there was no such order on the record of the case and, therefore, the representative of the appellant was warned to be careful to make such remarks in future. We would like to say that the appellant employer is a semi-Government Organisation and it was neither proper nor fair on its part to have raised a frivolous preliminary objection on the basis of incorrect statement of facts.

12. On the other hand we find that the respondent-Union is not only a duly recognised Union of the employer but previously the election of the Union and its office-bearers was held legal in the Award of the Industrial Court as published in the Gazette of West Pakistan (Extra ordinary) on page 4293 of 1965. It may further be pointed out that same objections were also raised on behalf of the appellant in Industrial Dispute No. 38 of 1965 that the Union was not a legally constituted body and the main reason for such objection was the same that the elections were not properly conducted but the Industrial Court observe) that even if it was held that the election of the President and Vice President of the Unison were rant proper it did not mean that the Union had become illegally constituted and what at best could be said was that the office of the President and Vice-President was lying vacant. This decision became subject-matter of an appeal before this Court vide F. A. O. 131 of 1965 and was decided on the 18th of August 1965. On the objection that the Union was illegally constituted as its elections were not properly convened this Court repelled the contention of the appellant and observed as follows : "We (sic) also in agreement with the view taken by the learned Industrial Court on the second point that if there was any irregularity in the election of any office-bearer of the Labour Union then that would not destroy or dissolve the Labour Union as such: only the particular office will remain vacant. Therefore, merely because the proceedings on a particular meeting of the Union were not properly conducted or were not minuted would be no ground to question the competency of the Union as such to initiate proceedings before the Industrial Court for the settlement of dispute with the employer." We are in respectful agreement with our learned brothers that this irregu larity will not affect the status of the Union and its competency to carry on with an industrial dispute on the basis of this objection alone cannot be assailed.

13. The appellant has raised similar objections in various other disputes with the same Union and in those cases has also contended that the election at one or the other time was not properly held according to the constitution of the Union. We, therefore, would like to add that although the rule of res judicata enacted in section 11 of the C. P. c;. is in its terms inapplicable to the proceedings before the Industrial Court, nevertheless this A rule, which is based on the sound public policy that the law suit should not be prolonged, should be extended to this case. We will, therefore, hold that the judgment of this Court in F. A. O. No. 1.31 of 1965 on the question that the status of the Union cannot be questioned on the mere ground that certain elections were held irregularly or illegally has become res judicial against the appellant on the principles analogous to those of section 11 of the C. P. C. Since the parties to the proceedings are the same and the issue which has finally been determined is about the irregularity of the election we, therefore, do not allow the appellant to reagitate this question all over again. Since the appellant has accepted the finding of this Court in the above-mentioned case we do not find any substance in the objections that the Union had become an illegally constituted body because some of its office-bearers were not legally elected or that the minutes of its meetings were not properly maintained or some of the meetings were not properly conducted.

14. We have also noticed that a similar objection that the Labour Union WAPDA was not a legally constituted body was raised by the appellant in Industrial Dispute No. 50 of 1965 but the appellant was not able to urge anything in support of this objection and as such the same was overruled by the decision of the Industrial Court dated the 3rd of March 1966 as published in the Gazette of West Pakistan (Extraordinary), 1966. This matter came up in appeal before this Court vide F. A. O. 63 of 1966 and it seems that the objection about the competency of the Union and the validity of its constitution was not raised and seems to have been given up. In these circumstances the appellant can also be estopped from challenging the validity of the Union time and again when in fact it has made no endeavour so far to get the recognition of the Union cancelled which remedy is available to an employer vide section 28-E of the Trade Unions Act or to get its registration cancelled from the Registrar of the Trade Unions.

15. Another circumstance which also points out in favour of the respondent is that before the preliminary issues were decided Sher Muhammad, the General Secretary of the Union was examined on behalf of the respondent on these preliminary issues on the 27th November 1963 but no question, whatsoever, about the constitution of the Union, the validity of the election or the proceedings of the meetings or any other matter connected thereto was put to him on behalf of the appellant. It is, therefore, obvious that these technical objections were argued on the basis of the bye-laws of the Union and there is no evidence on the record to sustain those arguments.

16. Before parting with the case we would like to point out that so far as the Province of West Pakistan is concerned, a notice of strike can be validly served under rule 57 of the West Pakistan Industrial Disputes Rules of 1960 which is in the following words : "Notice of Strike.-Notice of strike to be given by workmen : (i) in a public utility service shall be in Form G and (ii) in the case of an utility other than a public utility service shall be in form H and every such notice shall be signed by the Secretary of the registered Trade Union of which such workmen are members or where such workmen are not members of any registered Trade Union by five representatives of the workmen duly authorised in this behalf at a meeting held for the said purpose." In this case the status of the Union as a registered Trade Union has not been denied on behalf of the appellant. Neither it has been denied that the person, who signed the requisite notice was not the Secretary of the Trade Union of which the workmen were members. In these circumstances the validity of the strike notice 'cannot be questioned and the conciliation proceedings having failed the Union is fully competent to take the matter to the Court. The proceedings based on rule 57 are, therefore, valid. Since no corresponding rules exist in East Pakistan the authority of Chittagong Mercantile Employees' Association will not be attracted to the present case for this added reason also.

16. In view of the above discussion we will dismiss these appeals with costs. Appeals dismissed.